Bringing Suit Against the U.S. Government for Tort Injuries

Commencing with passage of the Federal Tort Claims Act in 1946 (FTCA), the U.S. government allows itself, in limited circumstances, to be sued for damages caused by government employee conduct. Generally, individuals may recover damages due to injuries caused by U.S. government employees who were acting within the scope of employment or office, provided a similarly situated employer would be liable under local laws.

Requirement of Filing a Claim Before a Lawsuit

Before filing suit, the injured party must first file a claim for the damages, within two years, with the government agency that employs the injuring party. Under the FTCA, the agency is supposed to investigate and respond to the claim within six months of being filed. If the claim is properly filed, the claimant may sue the government if:

• The agency makes no decision on the claim within six months
• The agency denies the claim
• The claimant is unsatisfied with the agency's decision

Filing a Lawsuit Against the U.S. Government

Following a denial of claim or in the event the complainant is unsatisfied with the agency's decision, the claimant has six months to bring a lawsuit against the U.S. government. The FTCA procedure is the method by which relief can be obtained. Thus the government itself, not the injuring party, is named as defendant in the lawsuit.

Suit must be brought in federal court where the incident occurred or where the claimant resides. When the suit is being handled in federal court, the Federal Rules of Civil Procedure apply, including:

• The government has longer to respond than private parties (60 days as opposed to 20)
• There is no right to trial by a jury
• Discovery (interrogatories, depositions, etc.) from the government can be more limited, partly because of privileges (executive privilege, national security, etc.)

Applicable Law

As the FTCA is intended to make the government liable to the same extent as a private employer under like circumstances, the law of the state where the injury took place controls the claims that may be brought (for assault, emotional distress, etc.) and also the extent of recovery. As a result, a claimant in one state may be able to recover damages arising out of a certain act, while a claimant in another state may not.

For example, some states have statutes that can protect landowners who open their lands for public without charge and the government may claim the benefit of these laws as well. Some states have also limited damage awards in certain types of cases (medical malpractice); these limits can also apply to suits against the government.

Limits on Recovery

The FTCA bars awards against the government for punitive damages (i.e., additional awards by courts to "punish" conduct deemed particularly reprehensible) and interest prior to judgment, whether or not allowed by state law. The FTCA and applicable U.S. Supreme Court case law also restrict double recovery for the same injury, i.e., recovery from both the FTCA claim or lawsuit and a "collateral source," such as Social Security Insurance or other disability programs. This prohibition has not been consistently applied by federal courts, however.

If successful, the injured party may recover costs of suit, but not attorneys' fees. The FTCA, however, limits the amount an attorney may charge for handling an FTCA claim (and lawsuit) to no more than 20% of any administrative settlement prior to a lawsuit and no more than 25% of any judgment or settlement after a suit has been filed.

Failure to Comply with FTCA Procedure

Failure to comply with the administrative claim and lawsuit procedures, and the time limits in the FTCA, may bar the claimant from recovery, both against the individual employee and the government. Absent the FTCA, the government is usually immune from lawsuits by individuals.