This article is written by Ritika Sharma, a law graduate from the University Institute of Legal Studies, Panjab University. The article comprehensively analyzes the Federal Tort Claims Act (FTCA) and provides insights into the essentials, exceptions, limitations, and procedural requirements for tort claims under the Act.
It has been published by Rachit Garg.
According to the Legal Information Institute, “tort” can be defined as “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.” It serves two main purposes. Firstly, to deter others from committing or omitting something that causes injury. Secondly, to provide compensation to the plaintiffs.
A tort claim obligates the defendant to pay compensation to the injured party. However, what if the defendant is working for the Federal Government? Before 1946, a tort committed by an employee of the government was never compensated. But after the introduction of the Federal Tort Claims Act (“FTCA”) in the year of 1946, compensation is now paid by the government on behalf of its employees.
Some of the instances where the US federal government was made to pay compensation under the FTCA were cases of minor accidents on federal property and sexual harassment of women by naval staff. The article provides a comprehensive discussion of the FTCA, along with its procedure for claims, exceptions, and statutory limitations.
Background of the FTCA
Before the introduction of the FTCA, the defendants in tort cases where a federal government employee was involved could either be the employee themselves or the federal government. However, until the mid-20th century, the principle of sovereign immunity was in effect. Hence, no individual could file a tort claim when a wrong was committed by the employees of the federal government.
Due to the fact that federal government employees do not have enough financial resources to pay compensation, litigators have always preferred suing the federal government for the injuries caused by its employees. But even this recourse had its own obstacles, as the principle of sovereign immunity blocked this remedy for the plaintiffs. Consequently, the US citizens demanded private bills, which could provide relief to the people wanting compensation in these particular cases.
This led to the formation of the legislation called the FTCA, which provided a means for the injured parties to get a waiver from the principle of sovereign immunity. It was held in the case of Evans v. United States (2017) that FTCA is “a limited waiver of the federal government’s sovereign immunity.”
What is FTCA
FTCA is the legislation that allows the common people to file a tort claim against the federal government when a tort is committed by the employees of the federal government. Section 2671 of the FTCA defines “federal agency” as the sum of “executive, judicial, and legislative branches, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.”
However, filing tort claims against the government could distract their attention from significant issues in the country; therefore, the FTCA has its own limit of application. The suit is filed for compensation or damages from the government in cases of loss of property as well as loss of lives or personal injuries.
It is pertinent to note that a tort claim would be successful against the federal government, only when the employee of the federal government has acted negligently within the course of his or her employment. Thus, the essentials for a claim under the FTCA are:
- The employee of the federal government has committed a wrongful act or omission.
- The employee has acted in such a way in the course of the employment.
- The act or omission has resulted in the loss of life or property or led to some personal injury to the plaintiff.
The two significant elements that would make the tort claim successful under the FTCA are discussed in detail below:
The person who has committed the tort is an ‘employee’ of the federal government
The plaintiff’s claim against the federal government will not be covered under the FTCA if the person who has actually committed the wrong is not an employee of the federal government. Under the FTCA, the following categories of persons are included within the ambit of ‘employees’:
- The employees working for any federal agency;
- The people working as military or naval personnel; or,
- The people acting on behalf of any federal agency;
- In some cases, the members of the National Guard during their training period.
Another controversy surrounds the question of whether the federal government is also liable for tort committed by the independent contractors who are working on some project for the government. The general rule is that independent contractors are themselves liable for the torts they commit. However, the ruling differs from one court to the other.
In the case of the U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Va., LLC (2018), it was observed that “a contractor can be said to be an employee or agent of the United States within the intendment of the Act only where the Government has the power under the contract to supervise a contractor’s ‘day-to-day operations’ and ‘to control the detailed physical performance of the contractor.”
The liability of independent contractors is determined with the help of Boyle’s Rule, examined later in this article.
The said employee acts or omits to act in the course of the employment
As already discussed, in order to file a tort claim against the federal government, it is essential that the employee have acted within the scope of their employment. In cases where the employee committed a wrong while acting in his or her private capacity, the plaintiff has a right to claim damages directly from the employee. The definition of the scope of employment of the federal government’s employees varies from state to state. The questions that help determine the liability of the federal government are whether the employee acted in the interests of his/her employer or whether the employee was given that particular task or employment during the course of which he or she committed the tort. For example, in the case of Berry v. Stevenson (1997), a member of the National Guard Training was driving a truck when it met with an accident, and the passenger got injured. However, in this case, it was held that as the driver was acting in his official capacity within the course of his employment, he could not be made liable to pay compensation.
Role of Attorney General in Federal Tort Claims Act
Usually, the plaintiff is not aware of the conditions specified under the FTCA, and they only file a tort case against the employee. In such cases, the role of the Attorney General comes into play. The Attorney General can certify under the FTCA that the employee was working in an official capacity. This results in the substitution of the name of the employee with that of the federal government in the tort suit.
As several exceptions under the FTCA apply when the tort claim is against the federal government, this can be a disadvantage for the plaintiff. That is why the certification by the Attorney General can be contested by the employees, and they base their argument on the premise that the employee acted in his or her personal capacity while committing the wrongful act or omission.
The Boyle’s Rule
Boyle’s Rule simply provides immunity to independent contractors in tort claims when they are working with federal agencies. This principle was established in the case of Boyle v. United Technologies Corp. (1988). In this case, a Marine helicopter co-pilot, David A. Boyle, died due to the crash of the helicopter, while the other three crew members were able to escape in time. The reason for his death was that Boyle could not open the emergency exit due to the water pressure. Boyle’s father filed a suit against Sikorsky Aircraft, the manufacturer, for poorly designing the escape system of the helicopter. However, the Supreme Court held that Sikorsky Aircraft cannot be held liable because it fulfilled all the elements of being a “military contractor.”
This led to the emergence of Boyle’s defense of providing immunity to military independent contractors. However, this shield from the liability of the independent contractors can be defeated by the plaintiff in the three following ways:
- Firstly, by proving that the product or object of the independent contractor in question was approved by the federal government without much review;
- Secondly, by contesting the specifications of the product in question, and that it does not meet the desired objective of the project; or,
- Thirdly, by proving that the independent contractor did not disclose the ‘inherent dangers’ of the product to the federal government.
Exceptions under the Federal Tort Claims Act
Unlike in cases where a tort is committed by a private person, the FTCA does not provide relief to the plaintiffs for each and every tort. The Act lays down various exceptions under Section 2680 which bar the plaintiffs from suing the federal government for some wrongful acts or omissions. These exceptions are listed below:
- Discretionary function exception;
- Negligence in the transmission of letters or post;
- Claims from the customs of excise or customs laws;
- Some admiralty claims;
- Some tort claims within the ambit of the Trading with the Enemy Act of 1917;
- Claims arising out of the imposition of quarantine by the government;
- Intentional torts of the plaintiff;
- Claims from the fiscal operations of the Treasury;
- Claims arising from military or Coast Guard services;
- Foreign country exception;
- Claims from activities of the Tennessee Valley Authority;
- Claims from activities of the Panama Canal Company;
- Claims from activities of the Federal Bank.
Some of these exceptions are discussed in detail as follows:
Discretionary function exception
The discretionary function exception enables the employees to make reasonable policies fearlessly and also saves the government from getting engaged in time-consuming litigation. It applies when the following elements are proven:
The employee must be acting discretionarily
It will be considered that the employee is acting “discretionarily” when there are no set rules, regulations, or laws under the federal statutes that guide the course of action of the employee. In other words, when the employee has completed a given task in his or her own way. Also, this requirement is satisfied where the rules and regulations guide the actions of the employees, but they are framed in a permissive rather than a mandatory language. It is still debatable whether this exception applies to cases that have crossed constitutional limits. The majority of courts opine that the discretionary exception does not immune the tort actions in case they are unconstitutional.
The employee must be involved in a matter of a policy consideration
This implies that the act of the employee should relate to “established government policy,” i.e., the act should be associated with some social, political, or economic decision. The decision as to whether it involves a matter of public policy or not differs from case to case. For example, the matter related to the availability of resources in a prison or the level of security in prisons comes within the ambit of public policy and is well-included within this exception.
This refers to the willful commission of the wrong by the federal government employee that resulted in the injury to the plaintiff. This exception immunes the federal government from tort claims arising out of actions that amount to battery, assault, libel, slander, deceit, misrepresentation, etc.
These actions were included within the ambit of exceptions, as it is unjust to make the government liable for intentional torts committed by the employees. Furthermore, these acts of battery, assault, etc., are difficult for the government to defend in a court of law.
Intentional tort committed by investigative machinery
In order to make the government liable in cases of abuse of power, the intentional tort committed by the investigative agencies has not been provided any shield under the exceptions. This was done with the introduction of a proviso in the FTCA exceptions provisions. For the case to fall under this category, it is essential that the employee of the federal government be an “investigative or law enforcement officer.” The following are included within the definition of “investigative or law enforcement officer”:
- Officers who execute searches;
- Officers who seize evidence;
- Officers who conduct arrests.
Foreign country exception
This exception shields the federal government from tort claims that are initiated by parties who get injured in a foreign land. The place where the tort was actually committed is of no significance, and this exception saves the government from getting involved in the legal mechanisms of foreign countries. This exception can be explained with the help of the case law in S.H. ex rel. Holt v. United States (2017). In this case, the plaintiff’s daughter suffered cerebral palsy due to her premature birth in Spain. The plaintiff’s argument was that this disability occurred because their request for “command-sponsored travel to a [USAF] base in Spain” was approved by the US Air Force with substandard medical facilities. In this case, the foreign country exception was applied since the injury occurred in another country, and the parents were not allowed to seek any compensation from the US Federal government.
Combatant activities exceptions
This exception immunizes the federal government against the torts committed by naval or military personnel, or the Coast Guard, during the time of war. This was introduced to give freedom to the military and naval forces to act fearlessly in times of emergency.
The Feres Doctrine
This is also a type of military exception that bars military personnel from suing the federal government in cases where tort claims have arisen out of the military service. This doctrine is not codified in the FTCA; however, it emerged from the renowned case of Feres v. United States (1950). In this case, three tort claims were filed against the federal government. The first claim was based on the negligent act of the government in confining military personnel in an unsafe place where he died due to fire. The second person claimed that an army personnel left a towel in his stomach during the abdominal operation, and the third person stated that the negligent medical treatment of a person resulted in his death. While deciding on the matter, the Supreme Court introduced the Feres doctrine and rejected the claims of all three persons by asserting that during the course of military service, no member can file a tort suit against the federal government for the wrong acts or omissions of other fellow servicemembers.
As a service member is not able to claim damages for injuries that occur during their service period, several scholars believe this to be an unjust principle. Consequently, several proposals have been introduced to reform this doctrine.
Limitations on damages
The FTCA also imposes restrictions on the number of damages that can be awarded by the courts. The amount of compensation always varies from one case to another. It also depends on the respective state laws. However, the FTCA states that in most cases, punitive damages or prejudgment interest are not awarded to the plaintiff. Also, the plaintiff is barred from claiming more than the damages that were initially claimed by him/her in the suit. This is to give the government an idea of the anticipated compensation or damages so that the government can carry out settlement procedures accordingly.
Nevertheless, the plaintiff can claim more damages than what was first stated by him/her in cases where there is new evidence or other intervening factors.
Procedural Requirements under Federal Tort Claims Act
For a successful claim under the FTCA, the plaintiff must have presented the case to the relevant federal agency. The plaintiff can file a case against the federal government only when the said federal agency has refused to entertain or denied the plaintiff’s claim. This implies that the plaintiff must exhaust all possible remedies before filing the suit against the government.
The object of this rule is to limit the scope of unnecessary litigation, which is otherwise very expensive and time-consuming.
Furthermore, it is crucial to note that the time limit to submit the written notification to the relevant federal agency is two years, after which no tort claim is accepted. This written notification can either be accepted or declined by the said federal agency. If this administrative claim is denied, then the plaintiff can file a suit under the FTCA within six months from the date of the intimation by an administrative agency about the denial of the claim. However, in some cases, the administrative agency takes unnecessary time in deciding on the matter. To address these issues, Section 2675(a) of the FTCA stipulates that in cases where the relevant agency takes longer than six months in arriving at a decision, it is assumed that the plaintiff has satisfied this requirement of the procedure, and he or she can rightly file the tort suit against the federal government.
Proposals for the amendment of the Federal Tort Claims Act
The exceptions and limitations on damages stipulated in the FTCA restrict a variety of claims against the federal government, and a number of plaintiffs receive no compensation for the loss of property or persons or any personal injury.
The following points reflect a set of proposals for the FTCA:
- To widen the applicability of the Act to include more types of claims and plaintiffs who can get compensation for their injuries.
- To eliminate or modify the exceptions and limitations to the principle of sovereign immunity that restricts the majority claims of the plaintiffs.
- To enlarge the definition of ‘employee’.
- To introduce exceptions or completely abrogate the Feres doctrine.
According to the Bureau of the Fiscal Service (Bureau), “the US Federal Government spends hundreds of millions of dollars annually to pay tort claims under the FTCA.”
Clearly, the expectation that the large number of tort claims against the federal government would divert attention away from other important issues resulted in the creation of exceptions in the FTCA, and the plaintiff cannot sue the federal government for every tort committed by its employees. Also, there are limitations on damages that the plaintiff can claim from the federal government. However, these are some areas that are still debatable and have given rise to a number of proposals. The proposals for the amendment of the FTCA aim at widening the ambit of the federal government’s liability for the torts of its employees.
Frequently Asked Questions (FAQs)
What is the principle of sovereign immunity?
The principle of sovereign immunity is derived from the statement “the king can do no wrong.” Therefore, it provides immunity to the federal government from being sued by the public, unless the government itself consents to the same. This is the reason that the Federal Tort Claims Act was introduced to help the victims of torts get compensation from the federal government.
Can governmental entities and corporations file a tort suit under the FTCA?
Yes, all US citizens and government entities, as well as private companies, can bring a tort action against the federal government under the FTCA.
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