Federal Tort Claims Act Cases

Anytime there is an accident, injury, or wrong done by an employee of any branch, department or service of the US federal government, the right to make a claim is governed by a special set of rules: the Federal Tort Claims Act.

Historically, there is no right to sue the government. There is a doctrine in law called Sovereign Immunity, which derives from the Latin phrase "rex non potest peccare," or "the King can do no wrong." Congress changed this law in the middle of last century, but set up very strict and complicated rules for presenting claims, settling claims, and pursing lawsuits against the government.

In order to have a claim against the federal government, notice must be sent in the form of a Standard Form 95 (SF-95). It must specifically lay out all of the claims being made against the government, and provide supporting documentation for the claim. This form must be properly filed within two years of the incident; otherwise, the claim will be dismissed.

After the federal government receives the claim, the government gets six months to decide what, if anything, to do. During this period, the victim can do nothing but wait. After six months of waiting, the government can either settle the case, continue doing nothing, or deny the claim. The injured party can file a lawsuit or wait.

If the claim is denied, then suit must be filed in the appropriate United States District Court within six months of the denial. Failure to file the suit within this time period will result in the case being dismissed.

Other things that are unusual about the Federal Tort Claims Act is that the attorney's fees are "capped" at 20% if settled before a lawsuit, and 25% if suit is filed. Many lawyers are leery of filing FTCA cases, because they know that they face unlimited resources on the other side, and litigating in Federal Court can be very time-consuming and frustrating. The injured party (or "plaintiff") is not allowed to have a jury trial, so a Federal Judge will determine the merits of the case.

For all of these reasons, it is important when choosing an attorney for a Federal Tort Claim Act case to make sure the attorney knows the FTCA, is willing to do the work necessary to win the case, and is willing to do it for the reduced fee mandated by law.