When Can You Sue the Federal Government? Understanding the FTCA

The government generally cannot be sued without its consent, but Congress has created a limited waiver of federal sovereign immunity through the Federal Tort Claims Act (FTCA). This federal law allows private individuals to seek monetary damages for certain negligent or wrongful acts by a federal employee acting within the scope of their employment that caused injury or property damage.

The process for filing a claim is strictly defined. The U.S. government does not make it easy to sue, and you can only sue under certain conditions. In most cases, you can only sue after you have met the administrative claim requirement with the appropriate federal agency.

This article covers what you need to know about who can file an FTCA claim, how to start the process, key deadlines, and important limitations. If you need legal assistance with your claim, consult an experienced civil litigation attorney near you.

What Is the Federal Tort Claims Act (FTCA)?

Suits against the United States would be barred by the federal government’s sovereign immunity. But in 1946, Congress enacted the Federal Tort Claims Act (FTCA).

The FTCA provides a limited waiver of federal sovereign immunity for certain claims. It permits federal district courts to hear civil claims against the United States for damages.

The FTCA applies if the state’s law would make a private person liable for a tort and no statutory exception applies.

Purpose of the FTCA

The FTCA provides a legal way to compensate private individuals who have suffered personal injury, death, or property loss caused by the negligent or wrongful acts of a federal government employee.

Under the FTCA, the federal government acts as a self-insurer. It is liable for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties.

In FTCA cases, the United States is generally liable to the same extent as a private individual would be in like circumstances, but the FTCA bars punitive damages and prejudgment interest. The FTCA substitutes the United States as the defendant in such a suit. This means that the United States, not the individual employee, bears any resulting government liability.

Legal Elements of an FTCA Claim

People who are injured or have sustained property damage from the wrongful or negligent act of a federal employee acting within the scope of their employment may file a claim with the government for reimbursement for that injury or damage.

The person must present their claim to the appropriate government agency for adjudication before filing suit in federal court.

To state a valid claim, it must be actionable under the law of the state where the act or omission occurred and must not fall within an FTCA exception. The claimant must demonstrate each of the following:

1. A federal government employee injured the claimant or damaged the claimant’s property
2. The employee was acting within the scope of official duties
3. The employee was acting negligently or wrongfully
4. The negligent or wrongful act proximately caused the injury or damage of which the claimant complains

Claimants must also provide documentation establishing that the claim satisfies all the elements of the FTCA and that they exhausted their administrative remedies. The claimant must usually request a specific amount of damages before a lawsuit can proceed.

Standard Form 95: Presenting Your FTCA Claim

Standard Form 95 is a United States government form for presenting administrative claims under the FTCA.

With this form, you can make a claim under the FTCA for property damage, death, or personal injury caused by a federal employee’s negligence or wrongful act or omission. You must be able to allege that such an act occurred within the scope of the employee’s federal employment.

You must first present the form to the federal agency whose employee’s conduct caused the injury. Although Standard Form 95 is not required to present a claim under the FTCA, it provides a helpful format to ensure that you provide the information necessary to bring an FTCA claim.

There is a time limit to complete the Standard Form 95. Under the statute of limitations, the claim must be presented to the appropriate agency within two years after its accrual. Once the claim is denied, the plaintiff generally has six months to file a lawsuit in federal court. These cases must be tried as bench trials, meaning before a judge rather than a jury.

General Process of an FTCA Claim

If the negligence of a federal employee acting within the scope of their duties caused you injury or property damage, you may file an administrative tort claim with the appropriate federal agency, and, if necessary, sue the United States in federal court.

Although the elements of an FTCA claim are uniform, the particular procedures for submitting a claim vary between federal agencies. It is critical that you confirm the procedures with the federal agency involved. Below is the general process.

To file a claim, complete these steps:

1. Complete a Standard Form 95. Explain in detail what happened. Use additional pages to fully explain the incident, if needed. List any monetary damages you are seeking. Under 28 U.S.C. § 2675(b), a lawsuit cannot seek more than the amount presented to the agency, unless there is newly discovered evidence or intervening facts.
2. Attach all documents that may support your claim. Depending on your claim, documents may include receipts, photographs, invoices, records of purchase dates and prices, police reports, healthcare costs records, proof of employment or wages, employer statements regarding injury-related work absences, and doctor’s statements.
3. Submit the claim. Submit the Standard Form 95 and any supporting documentation to the appropriate federal agency. Submit the claim in the way outlined by the particular agency. For example, many agencies accept mail, and some also accept email or fax.

When you have submitted your FTCA claim, the agency will investigate your claim. At the conclusion of the investigation, the agency may admit, deny, or settle. If the agency fails to dispose of the claim within six months, the claimant may treat the claim as denied.

Who Can Sue Under the FTCA?

Private parties and, in some cases, organizations or entities may assert FTCA claims.

People who are injured or have sustained property damage caused by certain wrongful or negligent acts of a federal employee acting in the scope of their employment may file an administrative claim with the government for reimbursement for that injury or damage.

The claimant must complete the written claim process for money damages with the federal agency. If the claim is denied (or deemed denied), you can then bring your civil case to the appropriate United States federal district court (rather than in state court).

What Claims Are Allowed Under the FTCA?

The FTCA allows individuals to seek monetary damages for personal injury, property damage, and other economic losses.

For example, you may bring an FTCA claim against the United States Postal Service if it caused an automobile accident and you sustained personal injury or property damage. Or, you may need to file a claim against the Department of Veterans Affairs if you allege that a federal healthcare provider committed medical malpractice or another malpractice claim.

Do States Have Similar Laws?

Many states have their own tort claims law that governs when and how someone may sue a state or local government entity. Like the FTCA, these laws often impose strict procedural requirements, but the rules vary widely by jurisdiction.

For example, some states require a Notice of Claim before suing a government entity. Others have specific pre-suit requirements for medical malpractice cases, such as expert-review rules or certificates of merit. These procedural requirements can be just as important as in FTCA cases.

State filing deadlines may differ from those for a claim under the FTCA. Some states also have “repose periods,” which cut off claims after a certain time, even if you did not discover the cause of the injury right away.

Regarding damages in a personal injury lawsuit, many states impose caps on non-economic damages, such as pain and suffering, limit punitive damages, or have other reforms that restrict recoveries that might otherwise be available under the FTCA.

Limitations to FTCA Claims

The FTCA generally applies to the acts or omissions of federal employees, not to independent contractors working for the government (absent special circumstances), and does not permit recovery of punitive damages against the United States. Attorney’s fees are also subject to limitations.

The FTCA also contains several important limitations, including the intentional-tort exception and the discretionary-function exception. Other exceptions can be found in 28 U.S.C. § 2680.

The Intentional-Tort Exception

The United States does not waive its sovereign immunity for all claims. The federal government preserves its sovereign immunity under 28 U.S.C. § 2680(h), and suits under the FTCA are not permitted for intentional misconduct:

• Assault
• Battery
• False imprisonment
• False arrest
• Abuse of process
• Malicious prosecution
• Libel
• Slander
• Misrepresentation
• Deceit
• Interference with contract rights

This means that you cannot generally bring an FTCA claim against the United States based on this type of intentional misconduct by a federal employee.

Law Enforcement Proviso

Although 28 U.S.C. § 2680 provides for an intentional-tort exception, within subsection (h) lies the “law enforcement proviso.” In some circumstances, FTCA claims may proceed against federal law enforcement officers for intentional torts committed within the scope of their employment.

Investigative or law enforcement officers are any officers authorized by the federal government to execute searches, seize evidence, or make arrests for violations of federal law.

The law enforcement proviso is essentially an exception to the exception for six intentional torts:

1. Assault
2. Battery
3. False arrest
4. Abuse of process
5. False imprisonment
6. Malicious prosecution

When those torts are committed by investigative or law enforcement officers of the United States government, a tort claim is permitted.

The Discretionary-Function Exception

Suits under the FTCA are also not permitted for claims based on the exercise or performance, or the failure to perform, a discretionary function or duty.

This exception applies to situations in which a federal employee was making a judgment call or policy decision. Even if the decision was negligent, the government may not be held liable under this exception. On a related but separate note, certain claims involving service members may be restricted by the doctrines that limit suits for injuries incident to military service.

Get Legal Help with an FTCA Claim

Suing the federal government is possible, but only in specific instances. Every step of the claim process must be followed correctly to preserve your right to file a suit in federal court–from exhausting the administrative process to submitting a proper claim to the right agency.

Even before you get to court, you may find that it brings greater peace of mind to work with a civil litigation attorney. They can help you identify the procedures for the appropriate federal agency, guide you through each stage of your claim, and protect your interests.

Use the Super Lawyers directory today to find an experienced civil litigation attorney near you.