FEDERAL TORT CLAIMS ACT (FTCA)
If you have been injured by the negligence of the government or a government employee in that employee’s official capacity as a governmental employee (i.e., an automobile accident caused by a U.S. Postal Service employee, an automobile accident caused by a military service-member in the operation of a government/military vehicle, etc.), the Federal Tort Claims Act allows you to pursue a claim against the government.
If you are not a military service member and have been injured by the negligence of a military or Veterans Administration (VA) doctor or while receiving treatment at a military or VA medical facility, the Federal Tort Claims Act allows you to pursue a claim against the government for those injuries.
I thought the government was immune from lawsuits?
Under the United States Constitution the federal government is immune from suit. The Federal Tort Claims Act, however, provides a limited waiver of the federal government's immunity from suit, and it allows you to bring claims against the government for the negligent conduct of its employees. In essence, the FTCA allows you to sue the federal government as if it were an individual.
Under what circumstances could I pursue a claim against the government?
If you have been injured by the negligent conduct of a government employee while that employee is acting in the course and scope of his or her government employment, you can pursue a claim against the government for the negligence of that employee under the Federal Tort Claims Act.
What is the authority for the Federal Tort Claims Act?
Under the FTCA, the government can only be sued 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. S 1346(b). Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual.
Are there Instances or Exceptions that prevent me from pursuing a claim against the government under the FTCA?
There may be. For example, 28 U.S.C. section 2680(h) provides that the government is not liable when any of its agents commit intentional torts such as assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, it also provides that the government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. There may also be other exceptions where the government is not subject to suit under the FTCA, such as the discretionary function exception, which bars claims against the government “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. S 2680(a).
Does my state’s law apply to claims brought under the FTCA?
Yes. The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law.
Can I sue the government for the negligence of its independent contractors?
Maybe. Under the FTCA, the U.S. can be subject to liability for the negligence of its independent contractor only if it can be shown that the government had the authority to control the physical performance of the contractor and exercised substantial supervision over the contractor’s day-to-day activities.
Who may file a claim against the government under the FTCA?
Almost anyone, except that active-duty military personnel generally cannot sue the government for injuries they sustain themselves that are incident to their military service. However, the dependents of active-duty military personnel, military retirees, and civilians may bring claims under the FTCA for their own injuries. The claimant does not need to be U.S. citizen.
How long after my injury do I have to file my claim under the FTCA?
Generally, FTCA claimants must file their claim with the government within two years from the "date the claim accrued," but this period could be shorter or longer depending on the circumstances. This two-year period is known as the statute of limitations. Usually, the “date the claim accrued” is the date of the injury, but that may not always be the case.
What is the process for pursuing a claim under the FTCA?
First, a Standard Form 95 claim form must be filed with the appropriate administrative agency within the statute of limitations period. The appropriate agency is usually the agency where the negligent employee works. Once it receives the claim the government agency has six months to take action on the claim or to review, negotiate, and/or deny the claim. If the agency does not resolve the claim within six months of the date the claim is filed, or if the claim is denied by the agency during that six-month period, the claimant may then file suit against the government in the Federal District Court.
Usually, such injuries cannot be pursued under the FTCA. However, claims for such injuries may usually be pursued under the Military Claims Act or Foreign Claims Act. These acts are similar to the FTCA but the possible remedies for recovery are more narrow.