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Federal Tort Claims Act

Federal Tort Claims Act


What is the Federal Tort Claims Act?

The Federal Tort Claims Act (FTCA) is a limited waiver of “sovereign immunity” that allows individuals to sue the federal government for actions committed by individuals acting on behalf of the federal government. This legislation was enacted in the aftermath of a B-25 bomber crash into the Empire State Building in 1945 that killed eleven people. That crash was not the inspiration for this bill but families of the victims from that accident could sue retroactively under that law.

What is sovereign immunity?

In the United States, both the Federal Government and State governments have sovereign immunity. Sovereign immunity exempts these governments from lawsuits unless they waive sovereign immunity and agree to be sued. The Tucker Act also provides for individuals to sue the government for breach of contract. The right of state sovereign immunity was first described in the Eleventh Amendment and further clarified in the case of Hans v. Louisiana. The federal government may not abrogate the sovereign immunity of the states. Tribal governments also enjoy sovereign immunity, but the federal government may abrogate that immunity as they see fit.

What are limits on the Federal Tort Claims Act?

Feres Doctrine

As members of the armed forces are government employees, they could have been potentially able to file suit against the government for negligent behavior that caused harm while these members were on active duty. This right is limited by the Feres Doctrine, established in the case of Feres v United States, where a soldier that perished in a barracks fire. The case against the government was dismissed after being heard by the Supreme. Similarly, medical malpractice cases brought against the government by military members are also subject to the Feres doctrine, much to the dismay of military family members. Courts have found that soldiers do not constitute “private citizens” by nature of their relationship to the government. The Veteran’s Benefit Act also establishes generous “no fault” compensation to injured service member, without applying negligence to the government. By this alone, the government is allowed to prevent suits from being brought against it. These two factors, the federal nature of the relationship between the service member and the government as well as an alternative compensation scheme preclude just about every suit that could be brought by a member of the military against the government.

The Feres Doctrine also coverers military victims of atomic tests as well as their spouses and children born to them with birth defects. Like other veterans, they are compensated by a veterans benefits and their relation with the federal government precludes them from filing suit. However, if the government fails to monitor the effect of radiation on the health of the veteran as he ages, then that is failing to uphold federal policy and the duty of care promised to the veteran. This breach is subject to suits against the government.

Discretionary Function Exception

A claim cannot be made on the failure of the government to perform a discretionary function. This exception was used to prevent claims from being made against the Federal Aviation Administration by survivors of a plane crash that claimed that the FAA has not performed adequate maintenance on the aircraft that could have prevented the accident. The federal government and a private employer are held to different standards in this exception.

A discretionary function includes conduct that involves “an element of judgment or choice” and therefore, employees and representative of the federal government that are following federal statutes and laws cannot be liable as they had no choice but to follow established courses of action, without regards to that individual’s opinion or motives. The element of judgment is critical to avoiding a discretionary function exception. Even after the element of judgment is proven, there are considerations for if the individual acted with regard to an official government economic or political policy. The government can only be found liable for negligence in a duty that would have been done by a private citizen such as essential maintenance or hazard clearing.


No federal agency can settle for more than $25,000 without the written approval of the Attorney General with an upper limit to $1 million that can be recouped in damages. Settlements of less than $2,500 are paid out of appropriations while settlements exceeding $2,500 is paid from general revenues. Attorney fees can only be paid if the court finds the United States to have acted in “bad faith.” Attorneys may not charge fees exceeding 25% of an award or settlement made by the Attorney General or 20% of a case settled without the aid of the Attorney General.

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