Caps & Immunities
The Federal Tort Claims Act
Karl J. Protil W
hen Congress passed the Federal Tort Claims Act (FTCA) in 1946, it gave American citizens the right to sue the Federal Government for the
first time. Te Act itself contains a number of intricate rules and requirements and should be reviewed prior to filing a case pursuant to the FTCA. See 28 USC 1346. For some of the other requirements for filing a claim pursuant to the FTCA, see, "Filing of Claims Against the United States Pursuant to the Federal Tort Claims Act: an Overview," Trial Reporter, Spring 2006.
When Congress first enacted the FTCA, not only did they
set forth a method by which to sue the United States, the Act also includes a number of threshold exclusions. Te focus of this article will be on exclusions to and causes of action not covered under the FTCA.
I. Constitutional Claims Te United States is liable to the same extent as a private
person would be according to the law of the place where the tort occurred. 28 USC 2674. Essentially this means that the law of the state where the tort occurred is going to be the substantive law applied to the claim. Under this analysis, claims for violation of constitutional rights are not cognizable under the FTCA unless the violations also constitute a tort within the state. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994). Under the Federal Employees Liability Reform and Tort
Compensation Act (the Westfall Act) (28 USC 2679(b)), individual suits against employees of the United States acting within the scope of their employment are prohibited. Tese individuals essentially have absolute immunity. Te statute, however, excludes from the FTCA coverage for any cause of action against a government employee brought for a violation
of a constitutional tort. Tis immunity, however, does not include conduct that (violates clearly established statutory or constitutional rights of which a reasonable person would have known). Harlow v. Fitzgerald, 457 US 800 (1982). Suits alleging a violation of constitutional rights may be brought against U.S. employees as individuals. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971). In addition, the Westfall Act does not preclude suit against
a health care provider under the Gonzales Act. 28 USC 2671. If a health care provider working for the federal government and acting within the scope of employment commits a tort excluded by the FTCA, such as a battery, the health care provider can be sued individually despite the limitations contained in the Westfall Act. Such an allegation could be made in situations where a health care provider does not obtain consent to perform a procedure or take some action that they deem medically necessary which may be violative of the patient’s religious beliefs. Te FTCA does not include any taking of property under
the Fifth Amendment of the U.S. Constitution nor any contract claims. Te Tucker Act provides the exclusive jurisdiction for such takings in the Court of Federal Claims as long as these “takings” are losses encompassed under the Fifth Amendment.
Trial Reporter / Spring 2011 29
What the Act Does Not Cover
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