Federal Tort Claims Act

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28 U.S. Code §§ 1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671–2680 (originally 28 U.S.C. §§ 921–946); enacted as title IV of the Legislative Reorganization Act of 1946 by Pub. L. No. 79-601, 60 Stat. 812–44, Aug. 2, 1946; significantly amended by Pub. L. No. 89-506, 80 Stat. 306, July 18, 1966; by Pub. L. No. 93-253, 88 Stat. 50, Mar. 16, 1974; by Pub. L. No. 100-694, 102 Stat. 4563–67, Nov. 18, 1988; by Pub. L. No. 101-552, 104 Stat. 2736, Nov. 15, 1990; by Pub. L. No. 102-572, 106 Stat. 4511, Oct. 29, 1992; by Pub. L. No. 104-121, 110 Stat. 863, Mar. 29, 1996; by Pub. L. No. 104-134, 110 Stat. 1321–75, Apr. 26, 1996; by Pub. L. No. 106-185, § 3(a), 114 Stat. 211, Apr. 25, 2000; by Pub. L. No. 106-398, § 1 [[div. A], title VI, § 665(b)], 114 Stat. 1654, 1654A–169, Oct. 30, 2000; by Pub. L. No. 106-518, title IV, § 401, 114 Stat. 2421, Nov. 13, 2000; Pub. L. No. 111-350, § 5(g)(6), § 5(g)(8), § 5(g)(9), 124 Stat. 348, Jan. 4, 2011; Pub. L. No. 113-4, Title XI, § 1101(b), 127 Stat. 134, Mar, 7, 2013.

Lead Agency:

Department of Justice, Civil Division, Torts Branch, Federal Tort Claims Act Litigation Section

Overview

Before 1946, the doctrine of sovereign immunity obliged almost all victims 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, or death caused by the negligent or wrongful acts or omissions of federal employees acting within the scope of their employment. The FTCA 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 prerequisite for suit (§ 2675(a)). The claim must be presented in writing within two years after it accrued, and the agency has a minimum of six 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 FTCA 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), and must exercise their settlement authority “in accordance with regulations prescribed by the Attorney General.” Each agency must also annually report to Congress all claims paid by it under 28 U.S.C. § 2672 (§ 2673).

As a result of the 1966 amendments, many agencies have established relatively elaborate procedures for the presentation, investigation, and administrative adjustment of tort claims. Today thousands of claims are disposed of at the agency level. Considerable litigation has occurred involving the statute of limitations 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 provided. 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 on the claim and give sufficient written notice of the claim to enable the agency to conduct an investigation. Several prior decisions, see, 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, ACUS recommended a number of changes and called for some amendments to the FTCA and the Attorney General’s rules. Recommendation 84-7, Administrative Settlement of Tort and Other Monetary Claims Against the Government, 49 Fed. Reg. 49,840 (Dec. 24, 1984). The Administrative Dispute Resolution Act of 1990 implemented some of these changes.

Court Claims

If administrative settlement efforts fail, the claimant may sue in the federal district court for the district in which either the alleged negligent or wrongful act occurred or the claimant resides (§ 1402(b)), provided that the administrative claim was properly presented within two years after it accrued and suit is brought within six months after the agency’s final denial (§ 2401(b)). Suit may be brought only against the United States, not against the federal agency. The only remedy under the FTCA is money damages; it 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 attorney 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:

  • 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 customs duty;
  • claims covered by certain other statutes;
  • claims arising out of libel, slander, deceit, or interference with contract; and
  • claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process, except when 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, 340 U.S. 135 (1950). Nor does it apply to injury claims of civilian federal employees arising in the performance of duty (their exclusive remedy against the government is under the Federal Employees’ Compensation Act).

Congress considered several bills during the 1980s that would have expanded the FTCA to cover agency employees’ actions that violate constitutional or statutory rights. Another subject of considerable commentary and legislative interest has been the scope of the discretionary function exception. None of the bills relating to these matters has received approval, and federal employees remain subject to personal damage suits for so-called constitutional torts.

In 1988, Congress did modify the FTCA to render it the exclusive remedy for common-law torts—as opposed to actions that violate constitutional or statutory rights—committed by federal employees within the scope of their employment. This legislation was necessitated by the Supreme Court’s decision in Westfall v. Erwin, 484 U.S. 292 (1988), which dramatically expanded the personal tort liability of federal employees. The 1988 amendments also made explicit that activities of officials of the judicial and legislative branches are covered by the FTCA and preserved for the United States any defenses based upon judicial or legislative immunity that could have been asserted by the official individually.

Related Statutes

Besides the FTCA, more than 40 “meritorious claims” and other ancillary statutes afford an administrative or judicial remedy for certain additional kinds of losses occasioned by governmental action. These statutes vary considerably as to kinds of claims covered, claimants eligible, remedies available, proof required, and procedures followed. They include the Military Claims Act (Pub. L. No. 78-112), the Foreign Claims Act (Pub. L. No. 77-393), National Guard Claims Acts (Pub. L. No. 86-740), Small Claims Act (Pub. L. No. 67-375), Copyright Infringement Act, Trading with the Enemy Act (Pub. L. No. 65-91), Public Vessels Act (Pub. L. No. 68-546), Suits in Admiralty Act (Pub. L. No. 66-156), and statutes covering some actions of the Departments of State, Agriculture, HHS, and Justice; NASA; the NRC; the Peace Corps; and the Postal Service. They are catalogued and discussed in Lester Jayson’s Handling Federal Tort Claims and George Bermann’s Administrative Handling of Monetary Claims.

Legislative History

Efforts at passage of legislation similar to the FTCA began in the 1920s; a measure with similar purposes was passed by the 70th Congress but met with a pocket veto by President Coolidge. Twin bills in many respects identical to the present Act, H.R. 7236 and S. 2690, were introduced in the 76th Congress in 1940. H.R. 7236 passed the House, but after hearings the Senate Judiciary Committee did not report S. 2690, and the measure died. In the 77th Congress, the Senate passed S. 2221. After hearings on similar measures introduced by Representative Emanuel Celler, H.R. 5373 and H.R. 6463, the House Committee on the Judiciary reported the Senate measure favorably, with amendments, but the full House did not consider it. As thus amended, S. 2221 is a virtual duplicate of the FTCA finally passed by the 79th Congress in 1946.

Because of this similarity, the hearings and reports on the 1940 and 1942 measures are valuable source material in analyzing the FTCA, especially as the hearings and reports on the 1946 FTCA are relatively sparse. As Lester Jayson noted in discussing the more than 30 prior bills introduced in this area, “since many of the provisions of the Federal Tort Claims Act as it exists today have their genesis in these proposals, and since many of these provisions were the subjects of discussion and explanation at committee hearings and in committee reports, it often may prove to be fruitful, if not crucial to [the practitioner’s] presentation and preparation of a case involving the meaning or interpretation of some part of the existing law, to examine its legislative history, and to review these earlier bills and hearings and reports.”

Source Note

The most comprehensive FTCA sources are Paul Figley’s A Guide to the Federal Tort Claims Act (2012), Jayson and Longstreth’s multi-volume Handling Federal Tort Claims (2007), treating FTCA litigation exhaustively, and George Bermann’s Administrative Handling of Monetary Claims (1984), examining at length the operation of agencies’ settlement processes and basic legal and procedural questions thereunder. Donald Zillman’s Presenting a Claim under the Federal Tort Claims Act (1983) gives valuable information on presenting a claim. A useful note titled The Federal Tort Claims Act, 56 Yale L.J. 534 (1947), examines the tort claims bills introduced between 1925 and 1946 along with significant committee reports and hearings relating to them.

The literature on officials’ constitutional tort liability (especially from the 1970s and 1980s) is vast, and Thomas Madden and Nicholas Allard’s Advice on Official Liability and Immunity (1982) contains an extensive annotated bibliography. Suing Government (1983) offers an overview of issues relating to constitutional tort liability.

Other articles deal with the government’s potential liability in a variety of specific situations, including negligent occupational, mine, or airplane safety inspections; improper customs seizures; weather forecasts; parole of dangerous criminals; atomic testing; and medical or other cases involving the military.

Bibliography

Legislative History and Congressional Documents

  • Hearings on H.R. 7236, Before the H. Comm. on the Judiciary, 76th Cong. (1940).
  • Hearings on S. 2690, Before the S. Comm. on the Judiciary, 76th Cong. (1940).
  • S. Rep. No. 1400 (1941).
  • S. Rep. No. 1196 (1941).
  • Hearings on H.R. 5373 and H.R. 6463, Before the H. Comm. on the Judiciary, 77th Cong. (1942).
  • H.R. Rep. No. 2245 (1942).
  • H.R. Rep. No. 1287 (1945).
  • Hearings Pursuant to H. Con. Res. 18, Before the Joint Comm. on the Org. of Cong., 79th Cong. (1945).
  • Hearings on Improvement of Procedures in Claims Settlement and Government Litigation, Before Subcomm. No. 2 of the H. Comm. on the Judiciary, 89th Cong. (1966).
  • H.R. Rep. No. 1532 (1966).
  • S. Rep. No. 1327 (1966).
  • H.R. Rep. No. 100-700 (1988).

ACUS Recommendations

Other Government Documents

  • Henry Cohen, Cong. Research Serv., 95-717A, Federal Tort Claims Act: Current Legislative and Judicial Issues (2001).
  • Henry Cohen, Cong. Research Serv., RL31649, Homeland Security Act of 2002: Tort Liability Provisions (2005).
  • U.S. Dep’t of Justice, Torts Branch Monographs (1981-2006). This is a series of monographs presenting the Department of Justice’s views on administrative claims, statute of limitations, the scope and effect of the discretionary function and other exceptions, and other significant substantive and procedural issues arising under the FTCA.
  • Gen. Accounting Office, Principles of Federal Appropriations Law (3 vols. 1994).

Books and Articles

Agency Regulations

Statutory Provisions

Federal Tort Claims Act

Title 28 U.S. Code