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Government Immunity and the Federal Tort Claims Act

The doctrine of “sovereign immunity” protects the U.S. and other governments from lawsuits. In 1946, Congress adopted the Federal Tort Claims Act (FTCA), which created a limited waiver of that immunity.

The Federal Tort Claims Act

Under the FTCA, individuals may bring suit against the U.S. government for money damages for injury to or loss of property, personal injury, or wrongful death if all of the following elements are met:

  • The injury was caused by the negligent or wrongful act or omission (but not intentional conduct) of an employee of the U.S. government
  • The injury occurred while the employee was acting within the scope of her office or employment
  • The injured party has first submitted a claim to the appropriate federal agency within two years of the injury
  • The claim has been denied or six months have passed without an agency decision

Exceptions to FTCA Rights

The following is a list of most, but not all, exceptions to the right under the FTCA to file a claim and lawsuit against the U.S. government. Exceptions include claims arising from:

  • Most actions by an independent contractor hired by the government
  • The exercise of “due care” in the execution of a statute or regulation, whether or not it is valid, or performance of a “discretionary function” by the government employee, whether or not discrimination is involved
  • Transmission of letters or postal “matters”
  • Collection of taxes or customs duties, or seizure or detention of goods, merchandise, or other property by a customs or other law enforcement officer
  • The imposition or establishment of a quarantine by the U.S.
  • Administration of the federal Trading With the Enemy Act
  • Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contractual rights. However, this exception does not apply to acts of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution by investigative or law enforcement officers of the U.S. government.
  • Fiscal operations of the Treasury Department or regulation of the monetary system
  • Combatant activities of military or naval forces, including the Coast Guard, in time of war
  • Activities of certain government agencies, such as the Tennessee Valley Authority
  • Construction, operation, maintenance and management of federal flood control projects, as well as man-made floods
  • Injuries to service personnel that arise out of or in the course of military service

Government Liability Under the FTCA

The FTCA preempts all other remedies for claimants who are injured as a result of acts of negligence by government employees, when conducted in the scope of employment. In other words, FTCA procedures for bringing a claim and pursuing a lawsuit are controlling.

The FTCA, however, is intended to make the U.S. government liable “in the same manner and to the same extent as a private individual under like circumstances.” As a consequence, the law of the place where the injury or loss occurred determines the type of claims that may be brought and the extent of recovery. The FTCA, however, bars liability for interest prior to judgment and punitive damages.

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