Federal Tort Claims Act: Pursuing Uncle Sam's Deep Pockets By Unlocking The Right Doors
October, 2006
by Dean S. Rauchwerger and Allison K. Ferrini and John F. O'Brien III
A king can do no wrong …
unless it runs into an ace.
- Anonymous
Big recovery opportunities exist for pursing federal tort claims against the United States. This article provides a general overview of the sizeable subrogation and recovery potentials involving “Uncle Sam” and the complexities of developing claims under the Federal Tort Claims Act.
A. Uncle Sam’s Big Footprint
Not only does Uncle Sam have deep pockets, his footprint is ever present in our socio-economic fabric. For example, the federal government owns approximately 29% of all land in the U.S. and more than 654 million acres worldwide. The U.S. employs roughly 2.7 million civilians and 2.3 million military personnel. Under the VA healthcare auspices alone, there are over 150 medical centers and 1,300 operating sites of care, providing care to more than 5.3 million people each year. The U.S. also owns and operates countless vehicles, leading to additional exposure. For example, the Postal Service owns over 200,000 vehicles at 7,600 locations. In light of these staggering statistics, it is imperative that the U.S. be considered a significant recovery target.
B. The King Can Do No Wrong
Historically, the sovereign has been immune from liability, irrespective of wrongdoing, under the principle that “the King can do no wrong” - Rex non potest peccare. This traditional principle remained steadfast until 1946 when Congress enacted the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) & 2671-2680. Prior to the FTCA’s enactment, the sole remedy for a private individual to recover from the U.S. was through a private relief bill from Congress, obviously a politically-connected endeavor.
Although the FTCA cracks open the door to U.S. liability, the door is not easily swung open as the FTCA is a limited waiver of sovereign immunity. The FTCA is limited to claims “for money damages … for injury or loss of property” resulting from “negligent or wrongful act[s] or omission[s] of any employee of the Government while acting within the scope of his office or employment….” 28 U.S.C. § 1346(b). What at first seems like an easy door to open, is often difficult to pass through because of the many locks that must be opened, such as: what constitutes a viable claim; who is a government employee; whether the employee acted within the scope of employment; when is the U.S. vicariously responsible for independent contractors; and under what circumstances can the U.S. avoid liability under the § 2680 statutory exceptions.
C. The Frequent
Discretionary Function Challenge
One of the toughest locks to pick, in opening the door to FTCA recovery, is the discretionary function exception, codified at 28 U.S.C. § 2680(a). This exception protects certain governmental decisions from tort challenge; matters of policy and judgment may not be challenged even if they were negligently or wrongly decided. A variety of reasons, including lack of judicial expertise, undue breach of separation of powers, and harm to vital national programs are cited as rationales for the application of the discretionary function exception. The discretionary function excludes claims arising out of:
act[s] or omission[s] of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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). The core inquiry is whether government policy-making underlies the governmental decision in play. But, if the governmental decision violates a mandatory requirement, statute or regulation, the discretionary function exclusion would not apply. The exclusion captures only those governmental acts that are discretionary in nature. Not surprisingly, this exception is most heavily litigated.
D. The Right Keys for Opening the FTCA Door
Even after establishing a prima facie case, the right keys are needed to unlock the door to Fort Knox. Many procedural prerequisites must be satisfied. The requirements for administrative filing include: filing a written demand for a sum certain with the appropriate agency and appropriate documentation of the injuries; and timely filing within the accrual period by the claimant or authorized representative. It is not until these criteria are satisfied and the administrative agency has adjudicated the claim, issuing a decision or denial, or six months have elapsed from the filing of a proper claim, that a claimant may bring suit in federal court.
E. Conclusion
Given the federal government’s broad foot print, it is important to appreciate the potential recovery opportunities available under the FTCA. After all, when it comes to pockets, none are deeper than Uncle Sam’s. Please contact any of the authors if you have any questions regarding FTCA issues. Should you be interested in an in-house client educational seminar, please contact CM partner Dean Rauchwerger
(drauchwerger@clausen.com).
Back to CM Report of Recent Decisions (2006v3) 2006 Volume 3 Table of Contents
