Suing the Government for Negligence: The Federal Tort Claims Act

If you are injured by a government agency, you may be able to sueunder the Federal Tort Claims Act.

Slip and fall in a post office? Injured in a traffic accident involving an FBI agent? Medical malpractice by a Veterans Administration doctor? These are only a few examples of the potential negligence claims against the federal government. If you have a claim against the feds, often your only option is to sue the federal government under the Federal Tort Claims Act (FTCA).

Unfortunately, suing the federal government under the FTCA is trickier than suing a private citizen you will have to jump through a number of hoops, and the lawsuits are subject to a lengthy and sometimes confusing list of limitations.

The Federal Tort Claims Act ("FTCA")

Historically, under the doctrine of "sovereign immunity," you were not permitted to sue the king. Sovereign immunity has carried over to modern times in the form of a general rule that you cannot sue the government unless the government says you can. Fortunately, the Federal Tort Claims Act ("FTCA") allows certain kinds of lawsuits against federal employees who are acting within the scope of their employment.

If you believe you may have a claim for negligence (careless conduct, or other wrongful or "tortious" conduct) against a federal agency or employee, you must first determine whether you can sue the federal government under the FTCA. Unless your claim is allowed by the FTCA, there is a good chance it will be barred by sovereign immunity. (To learn more about what constitutes negligence, read Nolo's article Who's at Fault for an Accident FAQ.)

Is My Claim Permitted By the FTCA?

In general, the FTCA is intended to provide monetary compensation for injury, property loss, or death "caused by the negligent or wrongful act or omission of any employee of the Government." But this broad-sounding mandate is subject to a lot of fine print.

Although the limitations and exceptions are too numerous to review in this article, here are some general guidelines regarding the limitations on FTCA claims:

• Only federal employees can be sued under the FTCA, not independent contractors hired by the federal government (unless they are treated like employees).
• The negligent or wrongful conduct must have been done within the scope of the defendant's employment.
• In general, only claims of negligence as opposed to intentional misconduct are allowed (though some claims for intentional misconduct can be brought against certain federal law enforcement officers).
• The claim must be based on and permitted by the law of the state in which the misconduct occurred.

Despite these and numerous other limitations on FTCA lawsuits, the federal government still pays out millions of dollars each year to compensate FTCA claims. So if you think you may have a valid claim, it may be worth pursuing.

If you determine that you do have a valid FTCA claim, the next hurdle is to follow the prescribed steps for such claims, which include some strict time limits.

Filing an Administrative Claim

In a normal lawsuit claiming negligence, you proceed more or less straight to court. But if you wish to sue under the FTCA, you must first file a claim with the federal agency responsible for the alleged misconduct. For example, if your claim is based on an accident at the post office, you would file your claim with the U.S. Postal Service. During this phase of the process, while your claim is being reviewed by the federal agency, it is referred to as an "administrative claim."

Although not strictly necessary, the easiest way to prepare your administrative claim is to use the federal government's standard claim form, known as a Standard Form 95 or SF 95, which has boxes for all the information you will need to provide. You can get a copy of the form from the Department of Justice's website (at www.usdoj.gov, type "standard form 95" into the search box) or request a copy from the federal agency to which you will be submitting your claim.

Here is an overview of how the administrative claim process works:

You must file within two years. You have two years from the time your claim arises to file your administrative claim with the appropriate federal agency. Because the exact date when your claim arose may be a legal issue in your case, it is important to file your administrative claim as soon as possible to avoid any chance of it being rejected as untimely.

Include facts and damages in your claim. Your administrative claim must include the exact amount of money damages you are claiming, as well as enough facts about your case to allow the federal agency to investigate the merits of your claim. Using a SF 95 form will help ensure that you've included all of the necessary information.

The agency has six months to respond. Once your claim is submitted, the federal agency has six months to rule on it. In some cases, the federal agency may "admit" your claim (that is, agree that your claim is valid) and agree to pay you some or all of the money damages you demanded, and you may not need to go to court.

You then have six months to file a lawsuit. If the federal agency rejects your claim or refuses to pay all the money damages you demanded, you have six months from the date on which the decision is mailed to you to file a lawsuit. Again, file your lawsuit as soon as possible after receiving this decision to avoid any chance of having your lawsuit dismissed as untimely.

You don't have to sue until the agency rules on your claim. If the federal agency fails to rule on your administrative claim within six months, you have the choice of either awaiting the agency's decision or going ahead with your lawsuit. As long as the federal agency is still considering your claim, there is no time limit for you to file a law suit in federal court; the six-month time limit only begins to run once the agency has ruled on your claim.

Once you have gone through the procedures listed above a process known as "exhausting your administrative remedies" you are eligible to file a lawsuit in court to pursue money damages from the government.

You must file your lawsuit in the United States District Court (the formal name for federal court) either where you live or where your claim arose. For example, if your claim involves an accident at a post office, you have the option of filing your lawsuit in the federal court where you live or where the post office is located. However, when suing the federal government for negligence, you cannot file your lawsuit in state court.

You cannot sue the federal government for more money than you asked for in your administrative claim unless you present newly discovered evidence that adds to the value of your injuries or property loss. Also, you cannot ask for punitive damages.

Once you have filed your lawsuit in federal court, the process becomes similar to any other lawsuit, including the opportunity to try and negotiate a settlement of your claim with the lawyer representing the government.

Settling Your FTCA Claim

You generally have two opportunities to settle your claim with the federal government. First, during the administrative claim process, you may be able to agree on an out-of-court settlement with the government attorney assigned to your case. Generally, this attorney will work for the federal agency that you have sued.

Second, once you file a lawsuit in federal court, it is typically assigned to a new team of attorneys from the U.S. Department of Justice, who may take a different view of your case and be more willing to settle with you.

Should You Represent Yourself or Get an Attorney?

As a general matter, federal courts go to considerable lengths to be fair to unrepresented plaintiffs and expect the lawyers employed by federal agencies and the U.S. Department of Justice to do the same. Nevertheless, the FTCA is a highly complex law, and unrepresented plaintiffs are unlikely to understand all of the arcane legal defenses and exceptions involved in their case. And, as with any personal injury case, if your damages are substantial, it is usually advisable to hire an attorney. (To learn more about finding an attorney, see Finding a Personal Injury Lawyer or visit Nolo's Lawyer Directory .)

The one instance in which it may make more sense to represent yourself is where the damages involved in your case are relatively small, rendering an attorney unaffordable. Keep in mind, however, that you may need a lawyer to help determine the kinds of damages to which you may be entitled and many lawyers do not charge for an initial consultation, during which they could tell you the range of damages involved in your case.

If you choose to represent yourself, you may be able to get some assistance from the Pro Se Office at the courthouse where you file your claim, which is there to help plaintiffs who are not represented by an attorney. (To learn more about navigating the court system on your own, see Nolo's Representing Yourself in Court area.)

Also, to learn more about special rules for personal injury claims against the government, get How to Win Your Personal Injury Claim, by Joseph L. Matthews (Nolo).