Ever get clobbered by the Government, literally?
Victims of accidents due to federal and state government employees' negligence - - and aviation, maritime, and negligent healthcare claimants at government owned facilities and military hospitals - - bring personal injury actions against the state or federal government to pay damages for losses and suffering.
What Are Governmental Claims
Like any other institution, the federal government and its employees can harm people through negligence. A Veterans Administration doctor may cause a wrongful death through negligence and medical malpractice. A law enforcement officer may commit a heinous act of brutality resulting in serious injuries. A contractor working on a government project may cause a construction accident.
But suing the government to pay for losses and suffering caused by its employees' negligence and wrongdoing is different from any other personal injury action and requires getting around sovereign immunity, a legal doctrine immunizing the state from prosecution for a legal wrongdoing.
Federal Tort Claims Act
The Federal Tort Claims Act ("FTCA") is a statute enacted by the United States Congress in 1946 permitting private parties to sue the United States in a federal court for torts committed by persons acting on the United States' behalf.
The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment. Under the FTCA, the government can only be sued "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Thus, the FTCA does not apply to conduct that is "uniquely governmental" and incapable of performance by a private individual.
The FTCA further provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, the FTCA provides an exception that the government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.
FTCA Exposure Exceptions
The FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances.
These exceptions include the "discretionary function exception" barring a claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. §2680(a).
In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two‑part test. First, determine whether the conduct involved "an element of judgment or choice" which is not satisfied if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow."
If an element of judgment is established, the second inquiry is "whether that judgment is of the kind that the discretionary function exception was designed to shield" in that it involves considerations of "social, economic, and political policy."
Mechanics of Bringing a Government Claim
The FTCA specifies that government's liability is to be determined "in accordance with the law of the place where the [allegedly tortious] act or omission occurred."
Thus, in an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law.
A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law