12. Federal Tort Claims Act

• Pages: 633-673

633

FEDERAL TORT CLAIMS ACT

12

Federal

Tort

Claims

Act

633

Citations:

28 U.S. Code §§1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671-80

(2000 & Supp. I 2001) (originally 28 U.S.C. §§921-946); enacted August 2,

1946 as title IV of the Legislative Reorganization Act of 1946 by Pub. L. No.

79-601, 60 Stat. 812-44; significantly amended July 18, 1966 by Pub. L. No.

89-506, 80 Stat. 306; March 16, 1974 by Pub. L. No. 93-253, 88 Stat. 50;

November 18, 1988 by Pub. L. No. 100-694, 102 Stat. 4563-67; November

15, 1990 by Pub. L. No. 101-552, 104 Stat. 2736; October 29, 1992 by Pub. L.

No. 102-572, 106 Stat. 4511; March 29, 1996 by Pub. L. No. 104-121, 110

Stat. 863; April 26, 1996 by Pub. L. No. 104-134, 110 Stat. 1321-75; and Apr.

25, 2000 by Pub. L. No. 106-185, §3(a), 114 Stat. 211; Oct. 30, 2000 by Pub.

L. No. 106-398, §1 [[div. A], title VI, §665(b)], 114 Stat. 1654, 1654A–169;

Nov. 13, 2000 by Pub. L. No. 106-518, title IV, §401, 114 Stat. 2421.

Lead Agency:

Department of Justice, Civil Division, Torts Branch, Tenth Street and Con-

stitution Avenue NW, Room 3649, Washington, DC 20530 (202) 514-3045.

Overview:

Before 1946, the doctrine of sovereign immunity obliged almost all vic-

tims of government wrongdoing to seek relief via congressional enactment of a

private bill. The Federal Tort Claims Act (FTCA) waived this defense to

permit damage actions against the United States for injury, loss of property

634 FEDERAL TORT CLAIMS ACT

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or death caused by the negligent or wrongful acts or omissions of federal em-

ployees acting within the scope of their employment. The Act provides that the

United States shall be liable in the same manner and to the same extent as a

private individual under like circumstances in accordance with the law of the

place where the negligent or wrongful conduct occurred.

Administrative Claims. As first drafted, the FTCA sought to transfer to

the federal courts primary responsibility for determining what redress was

warranted, but amendments enacted in 1966 shifted much of that burden to the

agencies. Claims must now be presented to the responsible agency as a prereq-

uisite for suit (§2675(a)). The claim must be presented in writing within 2

years after it accrued and the agency has a minimum of 6 months in which to

act. If the agency fails to make a final disposition of the claim within that

period, the claimant, at anytime thereafter, may treat that as a denial and file

suit.

Agencies may settle claims under the Act in any amount, subject, however,

to prior written approval by the Attorney General or his or her designee for

settlements in excess of a specified level (§2672),1 and must exercise their

settlement authority “in accordance with regulations prescribed by the Attorney

General.” These regulations are fairly short, and are set forth in the Appendix.

As a result of the 1966 amendments, many agencies have established rela-

tively elaborate procedures for the presentation, investigation, and administra-

tive adjustment of tort claims. Today thousands of claims are disposed of at the

agency level. Considerable litigation has occurred involving the statute of limi-

tations and the sufficiency of claimants’ administrative filings, particularly

over agencies’ authority to demand extensive information substantiating a claim

and to regard a claim as invalid for all purposes when such data are not pro-

vided. A widely cited case, Adams v. United States, 615 F. 2d 284, on reh., 622

F. 2d 197 (5th Cir. 1980), holds that §2675(a)’s mandate that a claim be filed

initially with the agency requires only that the claimant place a monetary value

1In 1990, the Administrative Dispute Resolution Act of 1990 amended the

FTCA to encourage agency use of arbitration and other alterative means of dis-

pute resolution to resolve administrative tort claims. That act, discussed above,

also provided that the Department of Justice could raise any agency’s authority

to settle tort claims without prior Department of Justice approval from $25,000 to

an amount not to exceed “the authority delegated by the Attorney General to the

United States attorneys to settle claims for monetary damages against the United

States.” Pursuant to an analogous provision of another law, the Department of

Veterans Affairs previously obtained authority to settle tort claims for up to

$100,000; the 1990 amendment was intended to enable other agencies to obtain

similar authority.

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FEDERAL TORT CLAIMS ACT

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on the claim and give sufficient written notice of the claim to enable the agency

to conduct an investigation. Several prior decisions (e.g., Swift v. United States,

614 F. 2d 812 (1st Cir. 1980)) had required considerably more of claimants. To

make the agency-level process more open and less adversarial, the Administra-

tive Conference in 1984 recommended a number of changes and called for

some amendments to the FTCA and the Attorney General’s rules (Recommen-

dation 84-7, see Bibliography). The Administrative Dispute Resolution Act of

1990 implemented some of these changes.

Court Claims. If administrative settlement efforts fail, the claimant may

sue either in the federal district court for the district in which the alleged

negligent or wrongful act occurred or where he or she resides (§1402(b)),

provided that the administrative claim was properly presented within 2 years

after it accrued and suit is brought within 6 months after the agency’s final

denial (§2401(b)). Suit may be brought only against the Untied States, not

against the federal agency. The only remedy under the FTCA is money dam-

ages; the Act does not authorize equitable remedies. The sum demanded in the

lawsuit generally cannot exceed the amount of the claim presented to the agency

(§2675(b)). Liability and damage standards, in most instances, are based on the

law of the place where the negligent or wrongful act occurred, except that the

United States is not liable for punitive damages or prejudgment interest (§2674).

Jury trials are not authorized under the FTCA, and attorneys’ fees are subject to

a ceiling of 20 percent of the amount recovered in agency-level settlements and

25 percent of judgments and litigation settlements (§2678).

Coverage. The FTCA contains more than a dozen exceptions (§2680). It

does not apply, for example, to the following:

• Claims arising in a foreign country;

• Claims based upon the performance of a discretionary function;

• Claims arising out of the assessment or collection of any tax or cus-

toms duty;

• Claims covered by certain other statutes;

• Claims arising out of libel, slander, deceit, or interference with con-

tract; and

• Claims arising out of assault, battery, false imprisonment, false ar-

rest, malicious prosecution or abuse of process, except where based

upon acts or omissions of federal investigative or law enforcement

officers occurring after 1974.

In addition, the FTCA does not apply to claims of members of the armed

forces arising out of activity incident to their service (Feres v. United States,