Suing the Federal Government

Suing the Government for Negligence:

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 “tortuous” 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.