The Federal Tort Claims Act

How To Sue The United States

When it comes to torts committed by the government and/or its employees, the beginning and ending place for any analysis is the Federal Tort Claims Act (FTCA). See 28 U.S.C. §§ 1346(b) and 2671-2680. The FTCA provides a limited waiver of sovereign immunity and allows for money damages against the government for damages, loss of property, personal injury or death. In order to recover under the FTCA, one must show that the damages claimed resulted from a wrongful or negligent act of a government employee acting within the scope of his/her employment under circumstances where the United States, if a private person, would be liable to the injured person in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. § 1346(b). There are a few potential land minds for those who would seek to recover under the FTCA, but who are not familiar with its provisions. The purpose of this brief article will be to provide some general  guidance as to how one should go about perfecting a tort claim against the United States of America.

The First Important Step To Take

Under the FTCA, a plaintiff must first submit an administrative claim to the responsible federal agency prior to the initiation of a lawsuit. The courts have held that the filing of such a claim is a jurisdictional requirement, meaning that before the United States government can be sued, a written claim must first be made to the responsible federal agency which the claimant contends is liable for their damages. Many federal agencies have their own regulations governing the filing of such claims but in most cases they are identical to regulations issued by the United States Department of Justice. The usual standard Form 95 Claim Form is that which should be used. It can be located via a Google search and sets forth what information should be provided to the government when a claim is filed. A form 95 is attached hereto.

The time for filing an administrative claim is two (2) years from the date of the accident. Once the administrative claim is filed, the plaintiff must wait for the agency to reject the claim or allow six (6) months to pass before filing suit. The passage of six (6) months without agency rejection may be treated as a denial under the law. In the event that a lawsuit is initiated before the filing of an administrative claim or before the rejection period has expired, the lawsuit can be dismissed for lack of jurisdiction.

Once an agency’s six (6) month rejection period has expired, the suit must be brought within a subsequent six (6) month interval, or if the agency actively rejects the claim, an action must be commenced within six (6) months of the date of the agency’s rejection letter. If a suit is brought more that six (6) months after an agency’s denial of the claim, it could be potentially barred by the statute of limitations.

A key point here is that the submission of administrative ante-litem claims are absolutely mandatory. The fact that the United States is aware of a potential claim does not in anyway relieve the claimant of his/her burden of filing the claim with the appropriate federal agency involved. Send the Form 95 to the agency responsible for the tort and to its local office and make sure you get confirmation of receipt of the claim via certified mail to be safe. Again, this is a requirement which must be observed if one’s rights are to be protected.

Typically, when one submits the Notice of Claim Form 95 to the appropriate federal agency, the basis of the claim is stated (which is the date the incident occurred, the description of the claimed negligent act, the type of injury suffered and the parties involved). One must describe in detail the nature and extent of the damages and make a sum certain claim for the amount being claimed. It is important that you claim all the monetary damages you seek on this form because the law provides that if the case is not resolved via an administrative review that you cannot sue for more than you claim in your form.

Another important feature ofFTCA cases is that a separate form must be filled out for each damaged claimant. For example, if a husband and wife are injured one should not file a single form for both but must file separate forms. If there are derivative claims such as an estate’s claim when a wrongful death is involved or a loss of consortium claim the practitioner or claimant should file separate claim forms because the FTCA applies to each separate claim. See 28 C.F.R. § 14.3(b).

Where To File And Who To Sue

Assuming an administrative claim is properly submitted and is denied and a lawsuit is thereafter commenced, the lawsuit must be filed in United States District Court, not in a state court. One advantage of proceeding under the FTCA is that such a suit can be brought in the Federal Judicial District where the plaintiff resides or where the negligent act or omission occurred. Thus, if a person is traveling, as an example, and is hit by a postal carrier running a stop sign while on vacation, the lawsuit still can be filed where the plaintiff lives. Once the lawsuit is filed, a copy of the Summons and Complaint must be served upon the Attorney General of the United States in Washington, DC and upon the United States Attorney for the District in which the action is brought.

It must be noted that when a Complaint is filed against the United States, that the Complaint can only name the United States of America as the defendant. The Complaint cannot name the employee or the federal agency in the Complaint but only the United States of America. As the defendant, The United States will have sixty (60) days in which to answer a plaintiff’s Complaint, not the typical thirty (30) days. Where to file? U.S. District Court. Who to sue? Only the United States of America.

Determining The Law Of Liability

When a claim is asserted against the United States government, the claim is based on the alleged liability of the United States in accordance with the law of the place where the negligent act or omission occurred. As an example, if a postal truck runs over someone in the State of Georgia, the laws of the State of Georgia will control whether the acts of the postal carrier driver were negligent. If a private person runs a stop sign and injures a third party, that would be negligence per se as it would violate a Georgia Uniform Rule of the Road statute. Similarly, if postal truck runs the stop sign, this would be negligence per se under Georgia law which state law would control the liability of the United States.

Although the FTCA creates a broad waiver of sovereign immunity, there are limits to recovery. The FTCA expressly excludes 11 common law torts for which a private person would typically be liable under state law: claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contractual rights.

Several classes of plaintiffs are also excluded from recovery. Active-duty servicemembers and their families are barred from recovery for injuries to the active-duty servicemember that occur incident to his or her service. Federal employees who are injured while performing their duties are barred from recovery; they have an exclusive remedy under the Federal Employees’ Compensation Act. Whether a servicemember or federal employee is barred depends on the factual circumstances of the injury and the prevailing case law in that jurisdiction.

Sometimes, even if the plaintiff is covered by the FTCA, the negligent actor may not be. While the United States is the only proper defendant in an FTCA lawsuit, the wrongdoer must be an employee of the government to invoke FTCA coverage. The liability that the United States assumes under the FTCA is based on a respondeat superior theory of liability. Where there is no employer-employee relationship, there is no government liability.

As is true of sovereign immunity in general, the federal government has not waived its immunity for the “discretionary” acts of government officials. These acts typically involve policy decisions for the department/agency involved. Congress wanted to prevent judicial “‘second-guessing of legislative and administrative decisions grounded in social, economic, and political policy” when creating this exception for the limited waiver of the government’s sovereign immunity. Although the discretionary function exception is somewhat murky, it generally excludes three types of claims: those based on administrators’ decisions, those based on agencies’ or officials’ regulatory conduct, and those arising from the design and execution of public works. The discretionary function exception exists primarily to bar claims that challenge the formulation of government policy. Traditional negligence claims, such as those involving medical malpractice and automobile accidents, are not barred by this exception.

No Right To A Jury Trial

Under the specific provisions of the FTCA, there is no right to a jury trial. See 28 U.S.C. § 2492. This is one of the disadvantages of suing the United States government, but because the FTCA is a limited waiver of sovereign immunity, the provisions of the Act control. Simply stated, the limited waiver provisions provide that there is no right to jury trial when suing the United States government. What this means is that once the case is assigned to a United States District Court judge, he or she will not only be the judge that will resolve any legal issues, he or she will also be the Trier of Fact.

Typically the way these cases work, if they cannot be settled, is that a trial will be scheduled in front of the United States District Court. The United States District Court judge will become the finder of fact. Typically. District judges require the parties to submit proposed Findings of Fact and Conclusions of Law in writing prior to the beginning of the trial. Once the trial begins, of course, there is no necessity that the case be quite as argumentative as it might be in front of a jury nor is there any necessity that counsel try the case as he or she would if a jury were present. Nonetheless, the moving party, the claimant, must call witnesses under oath, introduce depositions, call experts and otherwise do the same thing that anyone would do before a jury in order to prove the case by a preponderance of the evidence which is the burden of proof. While a District Court judge has the authority, if they wish, to impanel “an advisory jury” to issue a non-binding ruling on the dispute, most judges dispense with this and try the case by themselves.

Damages Allowable Under The Federal Tort Claims Act

Damages under the FTCA are measured by the law of the state in which the tort occurred. Thus, the state statutes control what damages may be obtained. However, there are some differences principally in the context of wrongful death claims. Because every law in every state is different in this regard, suffice it to say that counsel must be familiar with the District Court opinions in their district as well as in their state. The differences can also dictate who has the right to claim damages – e.g. a spouse or administrator of an estate.

Even though actual damages may be obtained from the United States government for pain and suffering, medical expenses, out-of-pocket expenses caused by the tort, etc., punitive damages are not allowed against the United States. Only compensatory damages may be recovered. While pre judgment interest is not allowed against the United States, post judgment interest is allowable assuming the government appeals an award from a District Court and loses the appeal.

Attorney’s Fees And Costs

One of the realities of the FTCA is that the fees for counsel are limited. If the case is settled pre-suit, the fees are limited to twenty percent (20%). If the case goes to trial before the District Court by way of a Bench Trial, the fees are increased to twenty-five percent (25%) of the award. As is true of most personal injury claims, attorney’s fees are payable from the amount of the recovery, not in addition to it. The United States is also liable for court costs just as a private party would be, however, attorney’s fees are not considered to be court costs.

As might be imagined, it is difficult to sue the United States in a complex medical malpractice case in a hypothetical claim involving the Veterans’ Administration because in such a case, counsel will be limited to a recovery of 20-25% of attorney’s fees. This is the standard fee that attorneys receive in workers’ compensation cases and is not a significant inducement for counsel to take a complex medical malpractice case involving the government. Nonetheless, Congress has limited the attorney’s fees that one may obtain in these cases and thus the most that an attorney can recover is twenty percent (20%) if the case is settled pre-suit and twenty-five percent (25%) if presented to the District Court via a bench trial. Warning: It is a misdemeanor to charge a client in a fee contract more than these statutory amounts in any FTCA case. See 28 U.S.C. § 2678.


As long as the acts are not “discretionary” and not within the scope of an official’s “judgment” on how to go about performing his/her official functions, tort recoveries can be obtained in cases against the federal government. An ante-litem notice, in a case of clear liability, can result in a pre-suit settlement. If not, counsel will typically deal with an Assistant U.S. Attorney in the district where the suit is filed, and/or counsel for the agency/department sued. The U.S. District Court will decide all disputed cases.
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