Federal Tort Claims Act

“The King can do no wrong” was a maxim brought to America from England. It reflected the concept of sovereign immunity. In America, the notion of executive, or governmental, immunity was translated into statutes and incorporated into the jurisprudence of the new nation. One could not sue a state or one of its subdivisions, or the federal government, unless permission was given to so proceed in the courts. Obviously this led to unfairness and inequity for persons who were tortuously injured by agents of government.

The Federal Tort Claims Act, Title VI of the Legislative Reorganization Act of 1946, was passed by the Congress in an effort to reduce the adverse impact of the doctrine of sovereign immunity. Additionally, it was designed to eliminate the practice of congresspersons introducing private relief bills for constituents who had been injured owing to government negligence. In it, the government gave its general consent to be sued in civil tort actions in federal court. It required a federal district court judge, sitting without a jury, to render judgment in these cases “under circumstances, where the United States government, if a private person, would be liable to the claimant for such damage loss, injury or death in accordance with the law of the place where the act or the omission took place.” However, it placed the burden of proof on the plaintiff in a tort action; it also contained thirteen exceptions to governmental liability.

In 1953, in Dalehite v. United States, the Supreme Court interpreted the “discretionary function” exception in such a way that effectively ruled out most substantive tort actions against the government. In 1950, the justices created another exception to the FTCA when, in Feres v. U.S. (1950), they concluded that one injured while on active duty in the military could not sue the government under the FTCA. Given these and other precedents and little or no reaction to the Court's statutory interpretations by the Congress, the FTCA has not been a major benefit to persons injured or killed because of negligent actions of federal employees.

— Howard Ball

A federal statute enacted in 1946 that removed the inherent immunity of the federal government from most tort actions brought against it and established the conditions for the commencement of such suits.

The Federal Tort Claims Act (FTCA) (60 Stat. 842) permits persons to sue the government of the United States in federal court for money damages

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. (28 U.S.C.A. § 1346(b))

In passing the FTCA, Congress allowed the federal government to be sued. Congress also made specific exceptions to the act, and the U.S. Supreme Court has interpreted one provision broadly, both actions resulting in the dismissal of many plaintiffs' lawsuits.

In consenting to be sued, the federal government waived the sovereign immunity it had had in the past. Justice Oliver Wendell Holmes, Jr., in Kawananakoa v. Polyblank, 205 U.S. 349, 27 S. Ct. 526, 51 L. Ed. 834 (1907), explained that "[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." As early as the 1821 case of Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257, the Supreme Court recognized the sovereign immunity of the United States.

Nevertheless, during the nineteenth century, Congress consented to the federal government's being sued in several causes of action. Congress established the Court of Claims in 1855 (28 U.S.C.A. § 171) to entertain contract actions against the United States. The passage of the Tucker Act (28 U.S.C.A. § 1346[a] [2], 1491) in 1887 broadened that court's jurisdiction to include designated nontort actions, including eminent domain cases. But until 1946 there was no readily accessible remedy for tort actions brought by citizens of the United States. The routine recourse was for members of Congress to introduce private bills for constituents who had been injured by government negligence. Congress eventually recognized that the private bill method was not an effective way to deal with the problem and passed the FTCA.

Now a person who alleges that an employee of the federal government has caused injury must commence a lawsuit pursuant to the FTCA. Once filed, the FTCA lawsuit becomes the plaintiff's exclusive remedy, regardless of any statute that expressly or impliedly permits actions against a designated agency. A federal judge hears the case without a jury.

Congress did not categorically waive sovereign immunity in the FTCA. The act contains thirteen exceptions, which release the federal government from any liability for enforcing unconstitutional statutes, for losing letters in the post office, for actions of the military in time of war, for damages caused by the fiscal operations of the Treasury Department or regulation of the monetary system, for collecting custom duties, for claims arising in a foreign country, for most intentional torts, and for several other miscellaneous kinds of claims (28 U.S.C.A. § 2680).

The most important and troublesome exception has been the discretionary function exception. Difficulty quickly emerged with the FTCA's provision that the waiver of immunity does not apply to any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused" (28 U.S.C. § 2680(a)). In Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the U.S. Supreme Court broadly interpreted the discretionary function exception to include all situations involving the formulation or execution of plans that were drawn at a high level of government and that entailed exercise of judgment. In Dalehite, federal government workers in Texas were negligent in packing and shipping explosive material, and their negligence resulted in the death of 536 people. The Court ruled that the workers were following specifications prepared by superiors in Washington, D.C., who were exercising their discretion. Therefore, the discretionary function exception applied and the government was immune from suit. The Court distinguished between decisions made at the planning and policy stage and those conducted at the lower, or "operational," levels that implement the policy decisions, even if some judgment or discretion is exercised in carrying out such decisions.

The Dalehite decision has limited the effectiveness of the FTCA for persons injured by the government. Some commentators have criticized the Court for allowing the discretionary function exception to swallow the FTCA. Many cases center on whether the alleged tortious conduct involved the exercise of discretion or was merely ministerial (carrying out a designated act), although virtually any act by a government employee is either directly or indirectly the outcome of an exercise of discretion.

The Supreme Court has placed other limitations on the scope of the FTCA. In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Court interpreted the FTCA to bar claims by members of the armed forces and their families for injuries arising out of or in the course of activity related to military service. In Laird v. Nelms, 406 U.S. 797, 92 S. Ct. 1899, 32 L. Ed. 2d 499 (1972), the Court held that the requirement of a "wrongful" act means the United States is not liable under any state rule imposing strict liability.

The FTCA's exception for intentional torts, such as assault, battery, false imprisonment, false arrest, and libel, was modified in 1974, in response to the Supreme Court's ruling in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In Bivens the Court held that federal law enforcement officers could be sued personally for violation of a person's constitutional rights. The FTCA was subsequently amended to make actionable conduct "or omissions of investigative or law enforcement officers of the United States Government" involving assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. This inclusion does not repeal the personal liability of the officers themselves, but it does make it more likely that a plaintiff will seek to sue the government, because the government has more money than do its employees. The government is also liable for torts such as trespass and invasion of privacy.

In 1988 the Supreme Court significantly altered the balance between the public interest in granting federal employees immunity from personal suits and the right to sue those employees personally for damages caused by their conduct. In Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), the Court ruled that a federal employee is not absolutely immune for official actions "unless the challenged conduct is within the outer perimeter of an official's duties and is discretionary in nature." Westfall denied most rank-and-file federal employees immunity from lawsuits against them personally for common-law torts committed in the scope of employment.

In response Congress quickly passed the Federal Employees Reform and Tort Compensation Act of 1988 (102 Stat. 4563) as an amendment to the FTCA. The act overruled Westfall by broadening the class of activities given immunity. Originally limited to the operation of motor vehicles, the act gave immunity to any wrongful or negligent act that an employee commits while acting within the scope of his or her office or employment. Congress required the government to accept sole responsibility for its employees' actions in the scope of employment, leaving those employees free to administer government policies without fear of personal liability.

See: feres doctrine.

Excerpt from the Federal Tort Claims Act

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

For centuries, the law has provided for compensation to individuals injured physically or otherwise by the actions of other private persons, including artificial "persons" such as corporations whose employees cause the harm. Significant parts of this liability fall within what is known as the law of torts. However, when the personal injuries are inflicted by the government through the actions of its employees, the ordinary rules of compensation do not apply unless the government takes special action to allow itself to be held liable. With regard to the federal government in particular, it is, as a general matter, immune from all liability under the law unless Congress consents to suit. This is the doctrine of sovereign immunity. As to the United States, the doctrine is not created by the Constitution itself but, rather, recognized by the federal courts in cases decided during the nineteenth century whose rationales have been criticized by various legal commentators. One of the conceptual underpinnings of the doctrine is that there can be no legal right against the authority that makes the law on which the right depends (Kawananakoa v. Polyblack [1907]).

The significance of allowing the United States government to be immune from suit can be fully appreciated only when it is realized that it employs millions of people to do its work, and that work is, more often than not, very similar, if not identical, to that which gives rise to tort liability of private persons. For example, federal employees routinely drive government-owned vehicles as part of their daily routine and, not surprisingly, are involved in automobile accidents. The federal government runs hundreds of hospitals and medical clinics that serve veterans and others; mistakes in treatment are no less common there than in private medical practices against which medical malpractice suits are common. And this is just the tip of the proverbial "iceberg." Of course, the potential magnitude of the government's legal liability can be—and has been—seen as a reason to urge for restricting the government's ability to be sued for compensation.

Given sovereign immunity, the traditional means for affording compensation to persons injured by the federal government was not a suit in court but rather, a so-called private bill enacted by both houses of Congress and signed by the president (as in the case of other legislation). Indeed, the first private bill providing redress for a tort claim was enacted as long ago as 1792. However, the mounting volume of these bills during the nineteenth century, the burdens on Congress in considering them, the perceived capriciousness of the process for their introduction and enactment, and the unfairness of leaving persons without any compensation for serious injuries provoked Presidents Fillmore and Lincoln, among others, to suggest that some type of adjudicatory process outside Congress was required to deal adequately with the claims presented.

In 1855, and then in 1887, with the enactment of the Tucker Act, Congress waived the sovereign immunity of the United States with regard to monetary claims other than tort claims (e.g., claims based on contracts with the government). As time went on, Congress enacted various limited waivers of immunity with regard to tort liability, as in connection with the federal operation of railroads during World War I and the operation of government maritime vessels. Those limited provisions for liability were part of a thirty-year debate on the need for a more comprehensive waiver of immunity from suit with regard to the torts committed by federal employees.

With the number of private bills being introduced each year in Congress growing into the thousands, and the majority of tort claimants being left without any remedy, resistance to change in the law weakened significantly. After an army bomber flew into the Empire State Building on a misty Saturday morning in July 1945, killing or injuring a number of people who found, to their dismay, that the most obvious party to sue (the United States) was immune from liability, whatever was left of the argument in favor of general United States immunity from suit for the tortuous acts of its employees rapidly dissipated. One year later, the Federal Tort Claims Act (FTCA) (P.L. 79-601, 60 Stat. 842) became law, and the victims of the Empire State Building crash were among the first to bring suit under the new statute.

Provisions of the Federal Tort Claims Act

The FTCA grants exclusive jurisdiction to the federal courts to dispose of claims by individuals and corporations against the United States where the lawsuits seek compensation ("money damages") "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 United States where that employee acted in performance of his or her governmental duties if the same action resulting in injury would impose liability on a private individual under state law in similar circumstances.

There is a deceptive simplicity with regard to this statement of a general waiver of immunity from suit for tort claims, as is demonstrated by the numerous decisions issued by the Supreme Court and other federal courts attempting to interpret and apply the FTCA over the past sixty years. For example, can the United States be liable without a showing of "fault" (e.g., negligence)? (No.) When can it be said that a governmental employee inflicted injury in the course of the employee's duties (e.g., the car accident occurred on the way from the employee's lunch to his or her duty station)? Do there exist unique governmental functions (e.g., running a lighthouse where the light goes out causing a shipwreck) as to which Congress intended to preserve immunity? (Perhaps, but the Supreme Court has not yet identified them.) And, finally, if the wrongful act takes place in one state and the injury in another and the laws of each state are different, what law applies? (The FTCA is itself clear only in requiring that "state law" must apply.)

One issue that the FTCA, as originally enacted, did not address was the liability of the federal employee to the injured person. Both before and after 1946, the law was clear that federal employees could themselves be liable to the injured person under state law in some circumstances. However, one of the potential costs of such liability is that federal employees become unduly timid in doing their jobs to avoid lawsuits and, as a result, the public interest suffers. Congress dealt squarely with this problem in the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act after the Supreme Court case that it overruled. Today, when a federal employee is sued to collect money damages for an action performed within the scope of his or her employment, the United States is substituted as the defendant and the employee is excused from the case without the potential for any personal liability. This substitution is not available, however, if the employee's action violated the United States Constitution in circumstances where the courts allow a damage remedy against the employee for that violation.

Exceptions to Federal Tort Claim Liability

If all of this is not complicated enough, Congress has enacted numerous exceptions to FTCA liability, and the Supreme Court itself has created an important one. The same rationale cannot be offered to support each and every exception. A few of these exceptions should be noted here.

Many torts involving the intentional conduct of federal employees (like assault and battery) cannot be the basis for United States liability under the FTCA. In such cases, it might be argued that it is unfair to penalize the government where the employee is more directly at fault. Nevertheless, there is a category of intentional torts for which the United States can be held liable, including those attributable to the actions of a federal investigative or law enforcement officer.

Not surprisingly, claims arising out of combatant activities in time of war (e.g., one serviceman shoots another by mistake during battle) are excluded.

Another exception of immense importance encompasses actions of federal employees that are considered to involve a "discretionary function." The Supreme Court has struggled, with mixed success since 1953 (Dalehite v. United States) in trying to impose limits on this exception to prevent it from almost entirely swallowing tort liability (since almost every action of a government official involves some discretion, i.e. choice) while, at the same time, protecting governmental functions that Congress probably did not want to affect by the imposition of tort liability (e.g., making important policy decisions).

Finally, the Supreme Court itself has created an exception to FTCA liability: U.S. service personnel injured "incident to service" cannot sue the United States in tort (Feres v. United States [1950]). While the rationales offered for this exception have varied over the years, the one most prominently invoked today is an alleged concern for the effect of liability on military discipline.

In order to encourage the administrative resolution of tort claims arising under the FTCA and to avoid costs imposed by litigation, the injured person must first present his or her claim to the federal agency whose employee allegedly caused the injury. Only after waiting a designated period or obtaining a denial of the claim from the agency (whichever first occurs) can the claimant resort to federal court in a suit against the United States under the FTCA.

Although the FTCA obviously has not removed all of the inequities imposed by the doctrine of sovereign immunity, as a general matter, it goes a long way toward ensuring that the government itself is not above the law.

Bibliography

"Developments in the Law—Remedies against the United States and Its Officials." Harvard Law Review 70 (1957): 827–938.

Jaffe, Louis. "Suits against Governments and Officers: Sovereign Immunity." HarvardLaw Review 77 (1963): 1–39.

Jayson, Lester S. Handling Federal Tort Claims: Administrative and Judicial Remedies. Albany, NY: Matthew Bender, 1964.

Lester, Urban A., and Michael F. Noone, eds., "The Federal Tort Claims Act." Litigation with the Federal Government, 3d ed. Philadelphia, PA: American Law Institute–American Bar Association, 1994.

Wright, William B. The Federal Tort Claims Act Analyzed and Annotated. New York: Central Book Co., 1957.

Internet Resource

U.S. Department of Justice Home Page. .

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