THE FEDERAL TORT CLAIMS ACT – A PRIMER
The Federal Tort Claims Act (hereinafter FTCA) provides a vehicle whereby claims can be brought against the United States by victims of wrongs committed by government employees. The statutes providing the basis for these claims can be found at 28 USC §§ 1346(b), 2671-2680.
- Who May Sue and Be Sued
- Statute of Limitations
- Administrative Claim
- Attorney’s Fees
- Expert Witnesses
- Statutes Pertinent to Federal Torts Claim Act Case
WHO MAY SUE AND BE SUED
Although the FTCA in general adopts state law to determine whether the facts give rise to a cause of action, it is federal law which determines “who” is entitled to assert the claim. In general, any person who has the capacity to sue and whose claim is within the coverage of the FTCA may institute an action against the United States under the Act.
The plaintiff must name the “United States” as the party-defendant. If the plaintiff is hurt by a government employee driving a government vehicle, he will likely end up in federal court on a removal petition even though the complaint only names the driver as a defendant, omits the government and is filed in state court. This rule applies only with respect to an employee’s operation of a vehicle within the line and scope of his employment – if the driver is acting outside the scope of his employment, there is no obstacle to suing personally in state court. Typically, the government is liable for the operations of “federal agencies” and “employees.” Both terms are defined by statute found at 28 USC § 2671. Federal agencies associated with any of the three branches of the government are responsible under the act.
28 USC § 2674 states that the United States shall be liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 USC § 1346 (b) states the basis for claims as the “negligent or wrongful act or omission” of any government employee while acting within the scope of his employment. Consequently, virtually every kind of negligence action that could be brought against private individuals can be maintained against the government whether based on misfeasance or nonfeasance. There are some specific exceptions which can be found at 28 USC § 2680.
STATUTE OF LIMITATIONS
The limitations period is a matter of federal not state law. In effect, there are two “statutes of limitations:”
- The claim must be filed within two years after the cause of action;
- Suit must be filed within six months after the date of mailing by the government of its notice of final denial of the claim by the agency to which it was presented. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this action.
See 28 USC § 2675.
Note that suit may be barred in less than two years from the date of the incident. Suppose the incident occurred on January 1 and the claim is filed on February 1 and formally denied on May 1. The statute would run six months from that denial though less than two years had elapsed since the incident.
The FTCA requires that in a civil action against the United States, the claim must first be presented to the appropriate federal agency. The claim must be for money damages in a sum certain. Suit may not be brought until after the agency has formally denied the claim or failed to respond within a period of six months. The plaintiff may, at his option, file suit at any time after the six month period of time. If suit is filed before the notice of claims requirement is met the case will be dismissed. See 28 USC § 2675.
Standard Form 95 may be used for the filing of a claim against most federal agencies. Click here to view the form. The claim must be filed with the government agency by whom the tortfeasor is employed.
The FTCA is a waiver of sovereign immunity, granting certain plaintiffs a tort claim for money damages. The limits of governmental liability under the FTCA are set out at 28 USC § 2674. The government is to be liable in the same manner and to the same extent as private individuals, with the limitation that neither prejudgment interest nor punitive damages may be awarded. Section 2674 provides that when only punitive damages are provided for under state law, the United States will be liable for actual and compensatory damages as “measured by the pecuniary injury resulting from such death to the person. . .” In a wrongful death action brought under the FTCA where the act or omission causing death occurs in Alabama, the United States will be liable for “the actual or compensatory damages, measured by the pecuniary injuries.” This is true even though Alabama’s wrongful death law provides only for the recovery of punitive damages. See Edwards v. US, 552 F. Supp. 635 (M.D. Ala. 1982); Lauderdale v. US, 666 F. Supp. 1511 (M.D. Ala. 1987).
Plaintiffs under the FTCA are limited in one other way in the amount of damages they can pursue. Pursuant to 28 USC § 2675(b), the amount of damages awarded is limited to the amount claimed before the administrative agency. This must be kept in mind when filing the initial claim so as not to limit yourself as to the damages you may seek if the administrative claim process is unsuccessful and a lawsuit becomes necessary. The only exception is when an increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim.
The attorney fee for FTCA cases is set by statute, 28 UCS § 2678. The plaintiff’s attorney may charge 25 percent of any judgment entered in any litigated case and 20 percent of any award or settlement made by an administrative agency. An attorney who charges more is subject to a penalty or jail sentence or both. No additional fee may be charged on appeal.
There is an obscure federal regulation found at 5 C.F.R. § 2635 which prohibits a federal employee from giving expert testimony in a case in which the United States is a party or has a direct and substantial interest. This is true unless the employee’s participation is authorized by the agency involved. This regulation is particularly applicable in medical negligence cases in which the testimony of a subsequent treating physician, also employed by the United States (Veteran’s Administration for example) may be in a position to provide testimony helpful to the plaintiff and adverse to the United States.
I have recently been involved in a case in which the subsequent treating psychologist refused to answer questions in his deposition on the basis of this regulation.
STATUTES PERTINENT TO FEDERAL TORT CLAIMS ACT CASE
- 28 USC § 2402 – Jury Trial in Actions against United States
- 28 USC § 2671 – Definitions
- 28 USC § 2674 – Liability of United States – Basis for and damages
- 28 USC § 2675 – Filing of a claim – necessary prerequisite
- 28 USC § 2678 – Attorney Fee; Penalty
- 28 USC § 2680 – Exceptions