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THE BASICS OF THE FEDERAL TORT CLAIMS ACT (“FTCA”)

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Joseph P. Griffith, Jr.
Joe Griffith Law Firm, LLC
Seven State Street
Charleston, SC 29401
(843) 225-5563 (tel)
(843) 722-6354 (fax)

I. INTRODUCTION.

A. STATUTES OF THE FTCA.

1. 28 U.S.C. 1346(b).

2. 28 U.S.C. 1402(b).

3. 28 U.S.C. 2401(b).

4. 28 U.S.C. 2402.

5. 28 U.S.C. 2671-2680.

B. REGULATIONS OF THE FTCA.

1. 28 C.F.R. 14.1 - 14.11 (DOJ’s regulations).

2. Most agencies have their own FTCA regulations, i.e., 32 C.F.R. Part 536 (Department of the Army), but the U.S. Attorney General’s regulations prevail if there is a conflict.

C. CAVEAT.

1. This outline is not exhaustive.

2. There may be contrary or minority caselaw holdings on any given point.

3. Top reference sources are Lester S. Jayson’s Handling Federal Tort Claims: Administrative and Judicial Remedies (1987) and recent ABA publication.

D. BACKGROUND OF THE FTCA.

1. Before 1946 the United States was immune from negligence suits per sovereign immunity.

2. FTCA provided a remedy for parties injured by government employee negligence.

3. Congress wished to avoid the burden of passing private relief bills for injured citizens.

E. SOME HIGHLIGHTS OF THE FTCA.

1. Attorney fees are limited to 20% of an administrative settlement and 25% of a judgment or compromise settlement after suit is filed. It’s a federal crime to charge, demand, receive or collect more than the specified amounts. 28 U.S.C. 2678 (not more than one year imprisonment or $2,000 fine or both).

2. The FTCA authorizes recovery for personal injury, death, or property damage caused by negligent federal government employees acting within the scope of their federal employment. 28 U.S.C. 1346(b).

3. Government liability is determined by the law of the state where the act or omission occurred. 28 U.S.C. 1346(b); Richards v. United States, 369 U.S. 1 (1962). The Government's liability is "in the same manner and to the same extent as a private individual under like circumstances ... ." 28 U.S.C. 2674.

4. The waiver of sovereign immunity is limited and must be strictly construed in favor of continuing immunity. Congress and the courts have carved out exceptions and limitations to the government’s liability. 28 U.S.C. 2680; Feres v. United States, 340 U.S. 135 (1950).

5. Negligence claims are allowed, but generally not intentional torts or strict liability claims. 28 U.S.C. 2680.

6. The FTCA is the exclusive money damages remedy for negligent acts or omissions of federal government employees acting within the scope of their federal employment. 28 U.S.C. 2679.

7. Punitive damages are precluded. 28 U.S.C. 2674.

8. Prejudgment interest damages are precluded. 28 U.S.C. 2674.

9. Non-jury trial before a U.S. District Court judge only. 28 U.S.C. 2402.

10. U.S. District Court has exclusive jurisdiction to hear FTCA claims. Wood v. United States, 961 F2d 195, 197 (Fed. Cir. 1992).

11. Claimant must present an administrative tort claim to the appropriate government agency for adjudication before filing suit in federal court. 28 U.S.C. 2675(a).

12. FTCA plaintiff cannot demand or recover in federal court an amount greater than that submitted in the administrative tort claim without proof of newly discovered evidence or intervening facts relating to the amount of the claim. 28 U.S.C. 2675(b).

13. FTCA statute of limitations requires claim be presented to the appropriate government agency within two years of accrual. 28 U.S.C. 2401(b).

14. Claimant must file a federal court complaint within six months of the agency's denial of the administrative tort claim, or can file a federal court complaint anytime six months after presenting the claim if no agency action has been taken. 28 U.S.C. 2401(b).

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