Monday, October 22, 2012

Federal Tort Claims Act Allows Certain Claims To Be Brought against U.S. Government

Q:       If I am injured by a federal employee, can I sue the United States?  
A:        Maybe. Generally, you cannot sue the United States of America for injuries or property damage based on the common law doctrine of sovereign immunity—the concept that you “can’t sue the king.” However, through the Federal Tort Claims Act (FTCA), the United States permits injured persons to bring certain tort claims against the government.  
            Let’s say, for example, that you are hit by a U.S. Postal Service van driven by a postal employee who is delivering mail, or you are injured as a result of negligent medical treatment you received at a VA hospital.  The FTCA allows you to pursue claims for injury or loss of property, personal injury or wrongful death caused by a federal employee’s negligence as long as a similar claim would prevail against a private person in the state where the negligent act or omission occurred. So, if Ohio law prohibits a particular cause of action, you cannot pursue that claim against the United States. Also, under the FTCA, you can only bring a claim against federal employees for injuries caused when they are acting in the scope of their employment, and the statute does not apply to claims against a government contractor.

Q:       Are there claims I cannot pursue against the federal government?
A:        Yes. The FTCA contains several exceptions that prohibit you from filing a claim against the United States even if Ohio law permits it. For example, the FTCA prohibits claims for certain intentional torts committed by federal employees, such as for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights, unless the claim arises from a negligent act  committed by a United States investigative or law enforcement officer.

Q:       How do I pursue a claim against the United States under the Federal Tort Claims Act?
A:        In most cases involving personal injury, wrongful death or property damage, you can head straight to court to pursue your claim. If your case falls under the FTCA, you must first file an “administrative claim” directly with the agency you believe is responsible for your injuries.  Using the previous examples, your claim for property damage or injuries caused by a postal vehicle would be filed with the United States Postal Service, and a medical malpractice claim resulting from care at a VA hospital would be filed with the Department of Veterans Affairs. If you try to skip this administrative step and file a claim directly in court, your claim will be dismissed. 

Q:       Is there a time limit for me to pursue my claim?
A:        Yes, and if you miss any deadlines, your claim may be dismissed. Your administrative claim under the FTCA must be filed within two years from the date of injury. Once your claim is filed, the agency has six months to respond. An agency can agree or admit to the claim or an agency can reject or refuse to pay any damages alleged for the claim. If the agency rejects the claim or refuses to pay, you have six months from the date the rejection/refusal is mailed to you to file a lawsuit in court. The six-month filing deadline doesn’t begin until the agency actually issues its rejection. If the agency doesn’t issue any ruling within the six-month administrative review time frame, you can choose to wait for the agency’s decision or file your claim in court. A lawsuit for an FTCA claim can only be filed in court after all “administrative remedies” have been exhausted.

Q:       What information should I include in my claim?
A:        You must include facts, identify witnesses and provide information sufficient so the agency can review the merits of your claim. You must include an exact amount of monetary damages along with any supporting documentation to verify the amount of claimed damages. The federal government has created a standard form, known as Standard Form 95 or SF 95, to use when submitting an administrative claim. The form is available online or from any federal agency. You don’t have to use this form when submitting your administrative claim, but it is a useful tool. Special care in calculating the administrative claim for current and future losses is needed, since any federal court lawsuit is limited to only the amount that had been requested in the claim.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cincinnati attorney Theresa Nelson Ruck of Sams, Fischer, Packard & Schuessler, LLC. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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