Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) is a federal statute that provides a limited waiver of federal sovereign immunity and authorizes civil lawsuits for money damages against the United States government “for the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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. § 1346(b). Although there are important exceptions to the FTCA cause of action, in general it provides that the United States can be sued and held liable “in the same manner and to the same extent as a private individual under like circumstances.”  28 U.S.C. § 2674.

To state a valid claim, the claimant must demonstrate that (1) he or she was injured or his or her property was damaged by a federal government employee; (2) the employee was acting within the scope of his or her official duties; (3) the employee was acting negligently or wrongfully; and (4) the negligent or wrongful act proximately caused the injury or damage of which the claimant complains.  A claim under the FTCA must be asserted within two years after the claim accrues.  28 U.S.C. § 2401(b).  The first step in asserting a claim under the FTCA is “present[ing] the claim to the appropriate Federal agency” (usually on a form called an SF-95) and allowing the agency a minimum of six months to investigate and, possibly, settle the claim.  28 U.S.C. § 2675.  This administrative exhaustion requirement is mandatory. If the agency does not settle the claim or issue a final denial letter within the six month period, the claimant may proceed to court; in any event, the lawsuit must be filed within six months after the date of mailing of the final denial letter.  28 U.S.C. § 2401(b).

There is no right to a jury trial under the FTCA.  The remedies available under the FTCA are determined by the state law that applies to the claim, and typically include compensatory damages, lost income, and out of pocket expenses, but the FTCA excludes prejudgment interest and punitive damages.  28 U.S.C. § 2674.  The FTCA also does not include an attorney’s fees provision, and it strictly limits contingency fees to 20% if the case is settled at the agency level and 25% if the case is resolved in court.  Charging or receiving a higher fee is a crime:  “Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that allowed under this section . . . shall be fined not more than $2,000 or imprisoned not more than one year, or both.”  28 U.S.C. § 2678.

The cause of action provided by the FTCA is the exclusive remedy for the negligent or wrongful conduct of a federal employee acting within the scope of his or her employment.  28 U.S.C. § 2679(b).  Any other causes of action against the employee are precluded, unless specifically authorized by federal law or brought for a violation of the United States Constitution.  If a federal employee is sued in his or her individual capacity based on actions taken within the scope of his or her employment, the United States government will intervene in the case and substitute itself as the party defendant, and the claims against the individual employee will be dismissed.  28 U.S.C. § 2679(d).

The FTCA contains several important exceptions that limit the federal government’s liability in certain situations.  28 U.S.C. § 2680.  Most importantly, the FTCA bars lawsuits “based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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 is abused.”  28 U.S.C. § 2680(a) (discretionary function exception).  In addition, the FTCA bars lawsuits “arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.”  28 U.S.C. § 2680(h) (intentional tort exception). However, the FTCA does authorize lawsuits “with regard to acts or omissions of investigative or law enforcement officers of the United States Government” for “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.”  28 U.S.C. § 2680(h).  Hence, federal law enforcement officers may be sued for abusing a person’s civil rights, just like state and city police may be sued.

Because the legal rules governing FTCA claims are complicated, an individual who believes his or her rights have been violated by a federal employee should contact a qualified civil rights lawyer immediately.