Suing the Government for Negligence: The Federal Tort Claims Act

Did you slip and fall in a post office? Did a U.S. Postal Service driver sideswipe your car? Did a Veterans Administration doctor misdiagnose you? You might be able to sue the federal government for negligence under the Federal Tort Claims Act (FTCA). In this article, we'll cover what it takes to file an FTCA claim and how to "exhaust your administrative remedies" so you can file a lawsuit against the federal government in court.

Making a Claim Under the Federal Tort Claims Act (FTCA)

Historically, the doctrine of "sovereign immunity," prevented ordinary people from suing the king. Sovereign immunity carried over to the U.S. government until lawmakers passed the FTCA in 1946. Now you can sue the federal government in some cases, but you have to follow special rules.

The FTCA is meant to compensate people for injury, property loss, or death "caused by the negligent or wrongful act or omission of any employee of the Government." But this broad-sounding mandate is subject to a lot of fine print.

You might have a claim under the FTCA if you were:

• injured by a federal government employee
• the employee was acting within the scope of their duties
• the employee was acting negligently or wrongfully, and
• the negligent or wrongful act caused you harm.

If you have documentation that your claim meets these requirements, then you may file an administrative claim within two years of the date you were harmed. You must file an administrative claim before you can sue the federal government in court.

Filing an Administrative Claim

In a lawsuit against another person or business, you can typically go straight to court. But if you want to sue the federal government, you must first file an administrative claim with the federal agency that caused you harm. For example, if slipped and fell at the post office, you would file your administrative claim with the U.S. Postal Service.

The easiest way to prepare your administrative claim is to use the federal government's Standard Form 95 (SF95). You can find the form online or request a copy from the federal agency that caused you harm.

How the Administrative Claim Process Works

You must file your claim within two years. You have two years from the date you were injured or your property was damaged to file your administrative claim. If you wait too long your claim will be rejected as untimely and you won't be able to file a lawsuit in federal court for money damages.

Include facts and all damages in your claim. Your administrative claim must include the exact amount of money you are asking for and enough facts about your case to allow the federal agency to investigate your claim. The SF 95 will walk you through the information you have to provide. Don't lowball your claim. You won't be able to ask for more money in your lawsuit than you asked for in your claim without new evidence (see below).

The agency has six months to respond to your claim. The federal agency has six months to rule on your claim. In some cases, the federal agency might "admit" your claim (that is, agree that your claim is valid) and offer to pay you some or all of the money damages you requested. Or, the agency might deny your claim or offer you less than what you think your claim is worth.

You then have six months to file a lawsuit. After the federal agency rules on your claim, you have six months from the date on which the decision is mailed to you to file a lawsuit. Again, don't delay. File your lawsuit as soon as possible after receiving the agency's decision to avoid having your lawsuit dismissed as untimely.

You don't have to sue until the agency rules on your claim. If the federal agency fails to rule on your administrative claim within six months, you may wait for the agency's decision or file your lawsuit. As long as the federal agency is still considering your claim, there is no time limit for you to file a lawsuit in federal court; the six-month time limit only begins to run once the agency has ruled on your claim.

After you've gone through the process outlined above—called "exhausting your administrative remedies"—you may file a lawsuit in federal court to pursue money damages from the government.

Filing Your Lawsuit in Federal Court

You must file your lawsuit in the United States District Court (the formal name for federal court) either where you live or where your claim arose. For example, say you live in California, but you slipped and fell at a post office while visiting your parents in Arizona. You may file your lawsuit in federal court in California or Arizona.

You can't ask for more money in your lawsuit than you asked for in your administrative claim unless you present newly discovered evidence to support the higher demand. You may ask for compensatory damages (damages that compensate your losses), not punitive damages (damages that punish the wrongdoer).

Once you file your lawsuit in federal court, the process is like any other lawsuit.

Settling Your FTCA Claim

You have two opportunities to settle your claim with the federal government. First, during the administrative claim process (see above), you'll have a chance to negotiate an out-of-court settlement with the government attorney assigned to your case.

Then, if you file a lawsuit in federal court, you'll have a second chance to negotiate with a new team of attorneys from the U.S. Department of Justice.

Should You Represent Yourself or Get an Attorney?

The FTCA is a complex law. You will have the best chance to clear all of the procedural hurdles and overcome the arcane legal defenses of the federal government if you have an experienced lawyer on your side. And, as with any personal injury case, if your damages are substantial, you are likely to get a better result if you hire an attorney. (Learn more about how to find the right attorney for your personal injury case.)

If your case is simple and you aren't asking for a lot of money, it might not make financial sense to hire an attorney. But remember that a lawyer can help you figure out how much your case is worth and your claim might be worth more than you think. Most personal injury lawyers don't charge you for an initial consultation. Talk to a lawyer about the range of damages in your case and how personal injury lawyers get paid.

If you decide to handle your own lawsuit, you might be able to get some assistance from the Pro Se Office at the courthouse where you file your claim, which helps plaintiffs who are not represented by an attorney. (Learn more about representing yourself in court.)

If you want to know more about special rules for personal injury claims against the government, read How to Win Your Personal Injury Claim, by Joseph L. Matthews (Nolo). For help finding an experienced personal injury lawyer in your area check out Nolo's Lawyer Directory.