Chapter § 6.03 Statutory Claims

• Jurisdiction: United States
• Publication year: 2020

§ 6.03 Statutory Claims

We will discuss several statutes below that waive sovereign immunity and grant federal district courts jurisdiction over certain categories of claims against the United States.

[1] Federal Tort Claims Act

The Federal Tort Claims Act (the “FTCA”),¹⁵⁰ enacted by Congress in 1946, was designed primarily to remove the government’s sovereign immunity from suits in tort.¹⁵¹ It gives district courts exclusive jurisdiction over claims against the United States for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission” of a federal employee “acting within the scope of his office or employment.”¹⁵² The statute requires claimants to exhaust their administrative remedies before bringing suit. In particular, it states that “[a]n action shall not be instituted . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency.”¹⁵³ The requirement of an administrative claim is jurisdictional and thus must be strictly adhered to.¹⁵⁴ “The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim.”¹⁵⁵ FTCA imposes a two-year statute of limitations on all tort claims against the United States,¹⁵⁶and it begins to run from the time the plaintiff knows both the existence and the cause of his injury.¹⁵⁷

FTCA lists exceptions to its waiver of sovereign immunity.¹⁵⁸ When an exception applies, immunity remains, and federal courts lack jurisdiction.¹⁵⁹ Two exceptions—the “discretion function” and “intentional tort” exceptions—are often litigated. Regarding the former, the United States is not liable for any claim based on “the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.”¹⁶⁰ Courts apply a two-prong test to determine whether an agency’s conduct falls within this exception.¹⁶¹ First, they determine if the conduct was discretionary (i.e., whether the conduct was “a matter of judgment or choice for the acting employee”).¹⁶² Conduct is not discretionary if a statute, regulation, or policy specifically prescribes a course of action for an employee to follow.¹⁶³ If the conduct was discretionary, courts then consider whether the conduct required the exercise of judgment based on considerations of public policy.¹⁶⁴ The government’s conduct is protected as a discretionary function if both elements are met.¹⁶⁵ The first clause of the provision containing the intentional tort exception excludes claims against the United States “arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.”¹⁶⁶ However, the provision’s second clause waives sovereign immunity for certain of those torts when they arise from the acts or omissions of federal law enforcement officers.¹⁶⁷

[2] Title VII of the Civil Rights Act of 1964

In 1961, President John F. Kennedy issued Executive Order 10925, which obligated the government “to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed or seeking employment with the Federal Government and on government contracts.”¹⁶⁸ In 1964, Congress passed Title VII of the Civil Rights Act, which prohibited employment-based discrimination in the private sector.¹⁶⁹ But the original version of the statute did not provide an administrative or judicial remedy for employment discrimination by the government. Congress plugged that hole in 1972 when it enacted the Equal Employment Opportunity Act, which waived the defense of sovereign immunity against discrimination suits initiated against the United States.¹⁷⁰

Before bringing a claim, however, a federal employee must exhaust all administrative remedies. First, employees “who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor” within 45 days of the act “to try to informally resolve the matter.”¹⁷¹ The employee may file a formal complaint with the agency’s Equal Employment Opportunity (the “EEO”) office if the counselor does not resolve the matter.¹⁷² The employee has 15 days to do so after receiving notice from the counselor of their right to file a complaint.¹⁷³ The agency is then required to conduct an impartial and appropriate investigation of the complaint within 180 days of its filing.¹⁷⁴ Once the EEO office issues a final decision, the employee has the right to appeal the decision to the Equal Employment Opportunity Commission (the “EEOC”)¹⁷⁵ or to file an action in the district court.¹⁷⁶ If the employee appeals to the EEOC, it must do so within 30 days after receiving the agency’s final decision.¹⁷⁷ On the other hand, the district court has subject matter jurisdiction to hear an action challenging a decision if the action is filed within 90 days of the agency’s final action, assuming no appeal is filed with the EEOC, or within 90 days of receipt of the EEOC’s final decision on an appeal (or 180 days if the EEOC fails to act).¹⁷⁸ A complaint may be dismissed as untimely if it is not filed within the 90-day time period.¹⁷⁹

[3] Clean Water Act and Clean Air Act

In the environmental realm, the United States has made itself amenable to suits in two key instances. First, the Clean Water Act (the “CWA”) establishes the basic structure for regulating discharges of pollutants into the waters in the United States and regulating quality standards for surface waters.¹⁸⁰ The CWA provides a limited waiver of sovereign immunity. Specifically, it waives...