When the "Sovereign" is Negligent

In spite of the ancient doctrine of "sovereign immunity," it is possible to sue the United States government for negligence.

   Did your spouse slip and fall in a United States Post Office? Were you injured in a car accident involving a postal truck or a car driven by an IRS agent or an employee of the Department of Interior? Were the healthcare providers at a Veterans Administration facility or military hospital negligent in their treatment of you or a family member? If so, you may have a potential negligence claim against the federal government under the Federal Tort Claims Act (FTCA).

   Historically, citizens could not sue the government by virtue of a legal doctrine -- "rex non potest peccare" or "sovereign immunity" -- that dates back to the early English Monarchy and means: "the King can do no wrong." Such was the state of things in the United States until 1945 when a B-25 bomber, flying in thick fog, rammed into the North side of the Empire State Building, killing 14 people and injuring scores more. The U.S. government did offer money to the families of the victims. Although some accepted, others initiated a lawsuit that was the final impetus for enactment of this landmark legislation, 28 U.S.C. § 1346(b) and § 2671 et. seq.. For the first time, the FTCA provided American citizens the opportunity to pursue some claims of negligence against the U.S. government.

    Today, suing the federal government under the FTCA is harder than suing a private citizen in state court. You must follow certain administrative steps in a timely manner before you may file a lawsuit in federal court. 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 statement is subject to a lot of "fine print." Further, there exists a confusing list of exceptions and limitations as to the type of claims you may be able to bring against the United States under the Act. Although the limitations and exceptions are too numerous to review in this article, here are a few guidelines regarding the limitations on FTCA claims:

Only actions of federal employees can be the basis for suit under the FTCA; claims against independent contractors hired by the federal government are not actionable (unless the contractor is treated like a federal employee).
The negligent or wrongful conduct must have been done within the scope of the federal employee’s employment.
Generally, only claims of negligence, and not intentional misconduct, are allowed.
The claim must be based on the law of the state in which the negligent act occurred.

Administrative Claim
    If you believe that you may have a valid FTCA claim, you must follow the prescribed steps for filing such claims. These steps have strict time limits. You must first file a claim with the federal agency responsible for the alleged negligent act. This is called the “administrative claim” phase of your FTCA claim. To file this administrative claim it is best to utilize the federal government’s standard claim form, known as a Standard Form 95 or SF 95. You can obtain a Standard Form 95 from the U.S. 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.

Statute of Limitations
   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. Your administrative claim must include a specific amount of money damages you are claiming, and sufficient facts about your case to allow the federal agency to investigate the merits of your claim. Having a lawyer represent you at the administrative claim phase can significantly assist you through the process.

   Once the administrative claim is properly filed, the agency has six months to respond. In some cases, the federal agency may “admit” your claim and agree to pay you some or all of the money damages you demanded. Many times the agency will reject your claim and send you a denial letter. If the federal agency rejects your claim or refuses to agree to pay the amount you demanded, you must file a lawsuit within six months from the date on which the letter is mailed to you. 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 lawsuit in federal court; the six-month time limit only begins to run once the agency has ruled on your claim.

   The suit must be filed in federal court in the district either in which you reside or the alleged negligence occurred. Litigation in federal court, especially litigation against the United States, can be very difficult and is fraught with deadlines and procedural rules. You would be well advised to retain a lawyer who has experience in Federal Tort Claims litigation for the litigation stage if you haven’t already hired an experienced FTCA lawyer to handle your administrative claim.

   If the matter goes all the way to trial, the issues of negligence and what damages may have been caused by the negligent acts will be decided by a federal judge without a jury. From start to finish, the day of filing the administrative claim to the day a federal judge issues a final opinion on the matter, on average may be take 18 months to three years.

   Despite these and numerous other limitations on FTCA lawsuits, the federal government pays out millions of dollars each year to private citizens to compensate them for their injuries and property damages caused by the negligent actions of federal employees. If you think that you or a loved one may have a valid claim against the United States, you should contact a lawyer of your own choosing, preferably one with FTCA litigation experience, who can advise you on the merits of your claim and assist you through the administrative and judicial process.