Cases such as medical malpractice by a doctor with the Veterans Administration or a slip and fall in a post office or an injury in a traffic accident caused by FBI official and similar cases are instances of possible negligence claims against the federal government. Where you feel an infraction against your right, your best and the guaranteed option is to use the Federal Tort Claims Act as your shield to get justice.
However, suing feds and getting justice under FTCA is not the same as litigation with a private citizen. There are hurdles to cross, and you have to be versed in the body and spirit of the act to scale through. Also, you need to prepare your mind for tortuous and confusing lists of roadblocks in arguing your case.
In the past, the concept of “sovereign immunity,” forbids suing the king. The same concept also applies to modern day government as a general rule that the government cannot be sued, except where the government says otherwise.
In government’s own thinking, it permits a citizen to sue government agent found negligent in the performance of their official duty. Thus, the government enacted the Federal Tort Claims Act to allow litigation against the public officer on the ground of negligence.
With the conviction that you have a case against such public officer, you need first to establish whether you can sue such officer under FTCA. Without the approval under the act, you cannot proceed with the case as the sovereign immunity clause will be invoked and the case quashed!
Sovereign immunity applies to state government as it does the feds. However, State has a similar law as FTCA where it makes provisional waiver of its immunity clause in the law referred to as “Tort Claims Act.” This act waives the immunity clause on erring state officer or its agency liable for negligent action or inaction resulting in property damage or personal injury against any citizen. Therefore, in such a situation, an injured person may be granted leave of prosecution. If you are contemplating filing a suit in such event against a state employee or its agency, it is better to check out the Injury Claims Act in your state to know the procedures.
While in content the FTCA is intended to give monetary compensate the aggrieved who suffered injury or property loss and in extreme situation, death, due to negligent act of government employee or its agency, there are some limitations to the implementation of the Act.
There are numerous restrictions and exceptions beyond the scope of this article; the following are general guidelines relating to FTCA limitations to claim:
While the limitations pose a serious challenge to claim FTCA, it is on record that feds still compensate lots of litigants making claims under FTCA. Therefore, it will be worth a try to pursue your FTCA claim if you are convinced you to have a case.
Having established that you have a valid case under FTCA guidelines, you have to brace up to the challenge of scaling the various hurdles including the inflexible time limit condition to argue your case.
Unlike in a civil lawsuit, filing a claim under FTCA requires that the claimant first file a complaint with the agency that has oversight over the affected officer. E.g., if you are claiming an agent of the FBI, you need to submit your claim with the federal bureau of investigation. This stage of the process is called “administrative claim.” While it may not be necessary, you will be starting on a right footing if you follow the prescribed federal government standard for filing called Form 95 or SF 95 that provides a guided flow to submit relevant information. A copy is available for download online from the justice department website at www.usdoj.gov; you can search for the keyword “standard form 95 to obtain a copy. Alternatively, you can ask the agency you are petitioning for a copy.
Let’s go through the requirement for filing an administrative claim.
There is a time limit of two years from the first date of the incident to file your Administrative Claim with the affected agency. In this case, it is vital to present your evidence as soon as it occurred to prevent being rejected on the ground of expiry date of claim submission.
You need to have all your facts presented in clear, evidence-based manner and detail your damage including the money value of your losses and verifiable facts in your claim. Remember that the agency concerned will make an independent finding according to your request, so it will be to make a valid submission with necessary details.
After submitting your petition, the affected agency will carry out its investigation and communicate their decision to you within six months. Their response may be favorable where the agency would accept your claim as valid and rule whether to pay the full or part of the application. In which case, you don’t have to go to court; however, if things go not as expected and you want to push forward with the case, you could proceed with the next stage of FTCA claims.
If your claim failed to get expected hearing from the agency and you feel unsatisfied with the outcome of the Administrative Claim, you may take legal action within six months from the date of the agency’s refusal of your claim. In this case, it is expedient to file your lawsuit as soon as possible because time is golden in FTCA claim to prevent the dismissal of your case on timing ground.
While six months is the time limit to file a lawsuit, this does not begin counting until the agency has spoken. Even if you did not receive their communication within the six months response period prescribed, you do have time to file your case anytime you receive the agency’s response.
Once you have satisfied the above procedures, also called “exhausting your administrative remedies” you are qualified to qualify to sue the government in the la court to get your money. However, you can only sue the government under FTCA in a court within the United States jurisdiction; you can do that where you live or in the territory where the incident happened. Be informed, however, that you cannot sue a federal government over the FTCA claims in a state court. Also, you can’t sue the feds, more than you already claimed in your administrative claim; exception to that is if you have incurred more damages as a result of the negligence with new evidence to back your claims. You should note, however, that the FTCA claims do not allow for punitive damages. Therefore be properly guided when claiming the FTCA act.
If you lose your case in the court against the federal government, the option left is following the general litigation process. This includes seeking the opportunity for settlement with the government lawyer, and the outcome can go both ways.
There are two instances to settle your FTCA claim: during the administrative claim stage and lawsuit. Both cases present a unique opportunity according to the merit of your case and the perspectives and character of the attorney representing the government. While out of court negotiation may fail at the agency level, you could get a better chance with the federal attorney from the justice department when the case in the court. Therefore, your understanding of the situation and the legal advice you receive from your counsel may make the difference in the result of your case.
While unrepresented plaintiffs get an excellent listening from federal court and as well from a government attorney, you need to know that FTCA is a tricky set of law you need more clarity and understanding of the act to defend your claims. Therefore, while it is not mandatory you hire an attorney, it is worth the investment to get a sound attorney if your demand is enormous which will make the government more sensitive to potential cost. We advise you hire an attorney to give your case a better chance of success.
Hiring a competent attorney will save you in different areas as those uneducated in legal matters often lose essential cases on the technical ground which your attorney will prevent from happening.
In any case, should you decide on representing yourself, you can get help at the courthouse office of the Pro SE where you file your claim. The office helps unrepresented claimants for some legal guidance.