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Legally Speaking


Issue: October, 2008
Author: John D. Whitaker

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The Federal Tort Claims Act

Prior to passage of the Federal Tort Claims Act in 1946, the doctrine of sovereign immunity protected the United States from being sued for torts committed by its agents and employees. In 1946 Congress passed the Federal Tort Claims Act because it was thought that the Government should be liable for the tortuous conduct of those carrying out the government’s work. Essentially, the Federal Tort Claims Act is a comprehensive statutory framework where Congress waived sovereign immunity in certain cases and permits suits against employees of the United States who cause injury while acting within the scope of their employment. The waiver of sovereign immunity is not absolute, and because compliance is jurisdictional, a thorough review of the applicable statutory provisions of the Act is required prior to commencing an action against the United States. Practitioners are encouraged to go well beyond this article before beginning the process of suing the U.S. Government.

The Tort Claims Act is located in various locations throughout Title 28 of the United States Code. The jurisdictional statute 28 U.S.C. §1346(b)(1) provides that the Federal District Court has exclusive jurisdiction over civil actions for “injury, or loss of property, or personal injury or death caused by 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.”

Venue is controlled by 28 U.S.C. §1402(b) and requires that the case be prosecuted only in the judicial district where the Plaintiff resides or the act or omission occurred.

Statute of Limitations
The statute of limitations applicable to tort suits against the United States is located at 28 U.S.C. §2401(b) and requires that prior to commencing an action, a written tort claim must be filed with the appropriate federal agency within two years after the claim accrues. The agency has six months to investigate the claim before any further action may be taken. After the claim is filed, a suit must be filed within six months after the date of mailing of a final denial of the claim by the agency. If the agency fails to act on the claim within six months, the claimant has the option of deeming the claim denied and can then file suit. 28 U.S.C. §2675(a). The filing of a timely tort claim is jurisdictional, and failing to file a claim correctly is an absolute bar to filing a suit.

Tort Claims Procedure
The procedure for filing the required tort claim is located at 26 USC §§2671-2680. The claim must include sufficient information for the agency to conduct an investigation regarding the merits. It must also include the specific amount of damages claimed. You cannot bring an action for more than the damages alleged in the claim unless you can show that any increased amount was not reasonably discovered at the time the claim was presented, or that there were some intervening facts relating to the amount of the claim that were not available when the claim was filed. 28 U.S.C. §2675(b). Usually, the better practice is to use the agency’s own claim form which is called the Standard Form (SF 95). A copy of the form can be obtained by contacting one of the specific agency attorneys or contacting the U.S. Attorney for the district in which the cause of action arose.

As with any jurisdictional requirement, great care must be used to complete the claim form with sufficient information to allow the Government a fair opportunity to investigate and evaluate the claim.

The head of each federal agency has the authority to settle cases, but only with the approval of the Attorney General in cases in excess of $25,000. Arbitration and other forms of alternative dispute resolution are authorized by 28 U.S.C. § 2672.

Commencing the Action
Once the claim has been denied, or deemed denied, a suit can be filed. If the Government employee is sued in his own name, a determination must be made by the Attorney General as to whether the employee was acting within the scope of his office or employment at the time of the incident. If such determination is made, the United States is substituted as the defending party. 28 U.S.C. §2679(c). If the case was filed in a state court, the case can be removed by motion of the Attorney General at any time prior to trial. 28 U.S.C. §2679(d)(2). Upon certification, the case proceeds in the same manner as a case filed against the United States under 28 U.S.C. §1346(b).

Service against the United States must be completed as required by Rule 4(i) of the Federal Rules of Civil Procedure. Essentially, the United States Attorney for the District in which the action is commenced must be served by delivery of the summons and complaint to the U.S. Attorney or a clerical employee who has been designated to accept service. The U.S. Attorney can also be served by registered or certified mail addressed to the Civil Process Clerk. The United States Attorney General must also be served in Washington, D.C. by registered or certified mail. In some cases the agency or officer of the agency must be served as well.

The primary defenses the Government has with respect to tort claims can be found in the exception statute at 28 U.S.C. §2680. The most frequently used defense is the Discretionary Function exception. This exception to liability protects the United States from liability for acts or omissions of a Government employee who while exercising due care causes injury while performing a discretionary function or duty. §2680(a). If the Government employee is exercising his discretion in making a decision or doing an act that results in injury, the Government may be immune from liability. Other §2680 statutory defenses preclude specific tort claims alleging assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or tortuous interference with a contract. There are a number of other exceptions in the statute that should be reviewed carefully.

Other Considerations
There are a variety of issues that make suing the U.S. Government different than most tort actions. For example, there is no right to a jury trial in suits against the United States. 28 U.S.C. § 2402. The cases are tried to the court, and this can make a lot of difference depending upon the judge you draw. Also, contingent fees are limited to 25% of any judgment or 20% of any settlement. Any attorney who charges more can be fined up to $2,000 and or imprisoned for up to one year. Prejudgment interest and punitive damages against the United States are prohibited by 28 USC § 2674. The cost of getting a federal tort case to trial with the requirements for experts, the lack of a jury trial and other complications make these cases expensive and risky. With the limited fees available, case selection is critical.

Following the Federal Tort Claims Act can be a tricky process, and the onerous restrictions it places on attorney fees and the inability to obtain a jury trial can make these cases more trouble than they are worth. Jurisdictional requirements always make Plaintiff’s lawyers wince. If you are contemplating taking one of these cases, you better make sure you get it right the first time.

John D. Whitaker graduated from the University of Wyoming Law School in 1986. Since graduation, he has been in private practice in Casper. His practice includes primarily plaintiff’s personal injury cases and criminal defense.

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