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:
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
- 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.
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
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