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Federal Tort Claims Act
Enacted in 1946 the Federal Tort Claims Act (FTCA) (60 Stat. 842) 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 FTCA 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 enjoyed 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 let the federal government be 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] , 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 13 exceptions, which release the federal government from any liability for, among other things, enforcing unconstitutional statutes, losing letters in the post office, actions of the military in time of war, damages caused by the fiscal operations of the Treasury Department or regulation of the monetary system, collecting custom duties, claims arising in a foreign country, and most intentional torts (28 U.S.C.A. § 2680).
The most important and troublesome exception has been the FTCA discretionary function exception. Under this provision, 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, 32L. 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 Bivensv. 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 "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 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.
Committee on Indian Affairs. 2000. Federal Tort Claims Act: Issues Affecting Coverage for Tribal Self-Determination Contracts. Washington, D.C.: Government Accounting Office.
General Accounting Office. 2000 Federal Tort Claims Act Issues Affecting Coverage for Tribal Self-Determination Contracts: Report to the Chairman, Committee on Indian Affairs, U.S. Senate. Washington, D.C.: Government Printing Office.
Morris, Daniel A. 1991. "Federal Employees' Liability Since the Federal Employees Liability Reform and Tort Compensation Act of 1988." Creighton Law Review 25.
Niles, Mark C. 2002. "'Nothing But Mischief': the Federal Tort Claims Act and the Scope of Discretionary Immunity." Administrative Law Review 54 (fall).
Reynolds, Osborne M., Jr. 1989. "The Discretionary Function Exception of the Federal Tort Claims Act: Time for Reconsideration." Oklahoma Law Review 42.
Zabel, Matthew L. 2003. "Advisory Juries and their Use and Misuse in Federal Tort Claims Act Cases." Brigham Young University Law Review 2003 (winter).