Caps & Immunities Immunities Chart Prepared by Annie B. Hirsch
Federal Tort Claims Act (FTCA) Provides limited waiver of US government’s sovereign immunity when its employees are negligent within the scope of their employment. Federal government is liable to same extent private citizen would be according to local law where tort occurred. 28 USC 1346(b) and USC 2674
Notice Requirement/ Statute of Limitations
Written notice MUST BE provided to the responsible agency within TWO (2) years of the claim’s accrual or claim is forever barred. 28 USC 2401(b).
A variety of forms of notice are accepted but Standard form 95 is the best way to satisfy this requirement. 28 CFR 14.2
Statute is dictated by Federal NOT state law and begins when Plaintiff knew, or reasonably should have known, both the existence and cause of injury. Pollard v US, MD Ala 1974, 384 F. Supp. 304
If the federal agency denies the claim, Claimant has six (6) months from the final denial to file suit. 28 USC 2401(b)
EXCEPTION to TWO year statute: Any claim based on a contract theory has a six (6) year statute of limitations. 28 USC 2401, 2501
Liability Exclusions & Exceptions to Exclusions
EXCLUSIONS TO FTCA:
1. Individual Suits against employees of US government acting within the scope of their employment are prohibited. 28 USC 2679(b)
2. Suits against US for violation of constitutional rights are not allowed covered by the FTCA unless it constitutes a tort within the state.Federal Deposit Insurance Corp. v Meyer, 510 U.S. 471 (1994)
3. Contract claims or taking of property under the fifth amendment claims cannot be brought under the FTCA. 28 USC 1346(a). (See the Tucker Act for these claims)
4. FTCA does not cover liability for claims against independent contractors. 28 USC 2671
5. Claims for damaged property, injury or death “incident to service” for military are NOT covered under the FTCA.Feres v US, 340 US 135 (1950)
6. Claims by government employees for worker’s compensation are NOT covered by the FTCA (See the Federal Employment Compensation Act (FECA.)
7. Claims arising out of scenarios where government employees used “due care” in carrying out statutory duty are excluded by FTCA. 28 USC 2680(a).
8. Claims involving acts or omissions classified as “discretionary function” are EXCLUDED by the FTCA. 28 USC 2680(a)
9. Claims for assault or battery are EXCLUDED under the FTCA. 28 USC 2680(h)
10. Claims for false imprisonment, false arrest, malicious prosecution or abuse of process are EXCLUDED under the FTCA. 28 USC 2680(h)
11. Claims arising in a foreign country are EXCLUDED. 28 USC 2680(k)
EXCEPTIONS to EXCLUSIONS: 1. Exception to 28 USC 2679(b): Action against an individual government employee for violation of a constitutional tort with a clear history is permissible.Harlow v Fitzgerald 457 US 800 (1982)
2. Action against a health care provider working for US within scope of employment commits a tort excluded by FTCA, they can be sued individually. (i.e. Battery or failure to obtain consent.)10 USC 1089(e).
3. Exception to 28 USC 2680(a): If act is considered a tort under state law.
Recovery Caps/ Attorney’s Fees Restrictions
Attorney’s fees are strictly limited to 20% of the recovery if settled at the administrative level and 25% of a settlement or verdict if the claim proceeds to court. 28 USC 2678.
NOTE: Failure of attorney to adhere can result in fines and/or imprisonment. Continued on next page. 34 Trial Reporter / Spring 2011
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