TITLE 28, CHAPTER 171 – THE FEDERAL TORT CLAIMS ACT
OVERVIEW
©Jonathan A. Willens
Briefworks Litigation Network
National Institute for Trial Advocacy
Notre Dame Law School
The Federal Tort Claims Act (“FTCA”) governs nearly all claims against the United States for torts committed by government employees. Because the government is engaged in an enormous variety of activities, tort claims against government employees arise in countless circumstances. But in every case, lawyers handling claims under the FTCA need to be aware of the special requirements set forth in the Act.
A limited waiver of
sovereign immunity
The United States government is immune from suit unless Congress has waived the government’s immunity. The FTCA includes an important waiver of sovereign immunity in 28 USCS § 1346(b). It permits people and corporations injured by the actions of federal employees to bring suit in federal court. The FTCA does not create any new claims against government employees; it simply opens the door of the federal courts to claims based on state negligence law. However, the door is not open to all claims. The FTCA contains many procedural and substantive restrictions that prevent the district courts from hearing claims that would be perfectly valid if they did not involve a federal employee. These restrictions are codified in Chapter 171 of the Judicial Code, 28 USCS §§ 2671–2680.
The FTCA generally applies to claims (1) for money damages, (2) arising from damage to property, personal injury, or death, (3) caused by a negligent or wrongful act (4) of a federal government employee (5) acting within the scope of his or her employment, (6) in circumstances where a private person would be liable under state law. Each of these six conditions must be satisfied before the federal court will find the government liable under the FTCA. In addition, the plaintiff must file an administrative claim with the appropriate government agency in compliance with 28 USCS § 2675 before commencing an action in federal court. Even when all of these requirements are satisfied, a claim may be barred if it falls under one of the exceptions in 28 USCS § 2680.
Section 1346(b) grants exclusive jurisdiction in the district courts over tort claims against the government. State courts cannot hear FTCA claims. The FTCA is also the exclusive remedy for such claims under 28 USCS § 2679. In most cases, the FTCA bars suit against the employee and the agency responsible for the injury. If the plaintiff fails to satisfy the procedural requirements of the FTCA, or if the specific claim is precluded by the FTCA, then there may be no remedy against any defendant for the government’s conduct.
Money damages
The sole remedy under the FTCA is money damages. In most cases, this will be sufficient, and the plaintiff will have the comfort of knowing that the United States has the capability to pay any judgment awarded. However, punitive or exemplary damages are not available against the government. If state law allows only punitive damages in wrongful death cases, then the FTCA preempts state law and permits recovery for pecuniary injuries suffered by the decedent’s family and others. 28 USCS § 2674.
The district courts do not have the authority under the FTCA to provide equitable remedies, such as an injunction directing the government to fix the problem that caused the injury. Other statutes provide for nonmonetary relief against the United States. For example, the Administrative Procedure Act, 5 USCS §§ 701–706, allows the district courts to enjoin the government from carrying out administrative decisions that are arbitrary or contrary to law. Many agencies can be sued under their own authorizing statutes, and such suits are not limited to money damages. But the FTCA provides the exclusive remedy for claims based upon the negligent or wrongful acts of government employees, 28 USCS § 2679(a), so remedies other than money damages are generally unavailable.
There is no claim for attorney’s fees under the FTCA. Instead, fees are paid out of the plaintiff’s judgment and cannot exceed 25 percent of the recovery. 28 USCS § 2678.
Loss of property, personal injury, and death
For most plaintiffs, the FTCA allows suits for damage to personal property, physical and emotional injuries, and wrongful death. In addition, joint tortfeasors may sue the United States for contribution and indemnity arising from the same subject matter as the plaintiff’s claim. For federal prisoners, claims for emotional injuries suffered while in custody are generally barred by 28 USCS § 1346(b)(2) unless the prisoner has also suffered a physical injury.
Definitions of employee and
federal agency
28 USCS § 2671 defines two critical terms. “Federal agency” includes all departments of the executive branch, as well as the legislative and judicial branches and the military. Also included are instrumentalities of the United States, a phrase that covers the United States Postal Service and other quasi-independent governmental entities. The statute excludes government contractors from the definition of federal agency. Claims involving government contractors are addressed in a separate commentary. Commentary on Section 2671
“Employee of the government” includes any employee of a federal agency, members of the armed forces and National Guard. Employees of state and local government agencies may qualify as federal employees when they are carrying out duties under the direction of a federal agency, such as a local police officer assigned to an FBI task force.
As explained below, the only proper defendant in most FTCA cases is the United States. However, if it is not clear whether the tortfeasor is a federal employee, then the best course is to name both the employee and the government as defendants.
Acting in the scope of
employment
The next question is whether the employee was acting within the scope of his or her employment when the act occurred. This is usually a question of fact: if the employee was working on government business, then she was acting within the scope of her employment. Close questions are resolved by looking at the law of the state where the act occurred. However, the issue is not whether the employee had the authority, or the apparent authority, to act for the government. Instead, the issue is simply whether the employee was carrying out the business of the government at the time.
This determination is often made first by the United States Attorney’s Office in the district where the tort occurred, pursuant to 28 USCS § 2679(d).
Negligent and wrongful acts
and omissions
The United States can be sued for most common law torts committed by its employees. Besides simple negligence claims, the FTCA covers medical malpractice, trespass, and claims arising out of arrests by federal law enforcement officers. The FTCA does not authorize suits based on absolute or strict liability, since they are not based on the negligent or wrongful acts of government employees.
The FTCA does not apply to contract actions, which are governed by the Tucker Act and other statutes. The FTCA also does not apply to employment discrimination claims; Title VII of the Civil Rights Act of 1964 provides the exclusive remedy for those claims. The Civil Service Reform Act and the Federal Employees Compensation Act govern other actions by the United States against its own employees; in most cases these statutes preclude suits by federal employees under the FTCA.
Moreover, 28 USCS § 2680 bars many negligence claims, such as claims for failure to deliver the mail, errors in tax collection, torts committed abroad or during military combat, libel, misrepresentation, and many others. One key provision, 28 USCS § 2680(a), bars claims based on actions taken by government officials who are carrying out statutes and regulations, or performing discretionary functions. Section 2680 is discussed in a separate commentary. Commentary on Section 2680
Liable as a private person
under state law
To succeed, the plaintiff must establish that the United States would be liable under state law if it were a private person. In other words, the complaint must identify a tort committed by the government employee for which his employer, the United States, would be liable under state law if the United States were a private entity.
State law includes both statutes and common law, provided that they apply to private persons engaged in whatever activity caused the plaintiff’s injury. State laws targeted at municipal agencies or police officers, for example, do not apply to private persons and cannot support a claim under the FTCA.
Note that the FTCA does not permit suits for damages based on violations of federal law. For example, the government may not be sued under the FTCA for torts based on violations of constitutional rights.
The government, however, may assert both state and federal law as a defense to claims under the FTCA. Common defenses include contributory negligence and assumption of risk, as well as defenses based on the traditional immunity of judges, prosecutors, legislators, and other officials. 28 USCS § 2674.
28 USCS § 2679 - Exclusive
remedy
The FTCA is an exclusive remedy in several respects. First, section 2679(a) provides that other statutes authorizing suits against federal agencies do not apply to claims cognizable under the FTCA.
Second, section 2679(b) provides that the United States is the only defendant in FTCA cases. It is not proper to name the employee as a defendant once it is determined that he was acting within the scope of employment, nor is it proper to name the federal agency as a defendant. In most cases, the parties will agree to substitute the United States for other named defendants. However, if the United States has not been named as a defendant within the period provided by 28 USCS § 2401, then the claim may be barred as untimely.
Third, exclusivity means that government employees are generally immune from suits for damages arising from their official conduct. As a result, plaintiffs cannot pursue a common law tort claim against the United States under the FTCA in federal court while also suing the employee individually in state court.
The principal exception to the rule of exclusivity is stated in 28 USCS § 2679(b)(2), which provides that government employees may be sued for violating the Constitution or statutes that specifically provide for such suits. Section 2679 is discussed more fully in a separate commentary. Commentary on Section 2679
28 USCS § 2675 - The
administrative claims process
No action may be brought under the FTCA unless the plaintiff has first presented her claim to the appropriate federal agency and the claim has been denied. The administrative claim must be filed with two years of accrual or it will be “forever barred” by 28 USCS § 2401(b). If the agency has not decided the claim within six months, the plaintiff may file suit.
Third-party complaints, cross-claims, and counterclaims are exempted from the administrative claim requirement by 28 USCS § 2675(a).
The administrative claim must state the exact amount of damages that the plaintiff is seeking. Claims that seek “amounts to be determined” or other imprecise damages are not acceptable. Moreover, under section 2675(b) the complaint cannot demand more than the administrative claim unless the additional sum is justified by newly discovered evidence.
The requirements and procedures for administrative claims are discussed in a separate commentary. Commentary on Section 2675
Timing and procedure in the district court
The complaint in an action under the FTCA must be filed within six years of accrual and within six months after the administrative claim is denied. 28 USCS § 2401. The complaint must be served on both the Attorney General and the United States Attorney in the appropriate district under Rule 4(i) of the Federal Rules of Civil Procedure. Venue is proper in the district where the plaintiff resides or where the tortious act occurred. 28 USCS § 1402(b).
FTCA actions are tried by the district court without a jury under 28 USCS § 2402. The court may ask a jury to give an advisory ruling on questions of fact relating to the government’s liability, particularly if a jury is hearing claims against another defendant in the same trial.