Suing the Government

Federal Tort Claims Act
(FTCA)

Studies

Federal Tort Claims Act: Information Related to Implications of Extending Coverage to Volunteers at HRSA-Funded Health Centers. GAO-09-693R, June 24, 2009.

Statute

28 USC 2680(h) - Exemptions to the FTCA

Sec. 233. Civil actions or proceedings against commissioned officers or employees - Immunity for public health service employees. Also applies to community health centers and free clinics.

Research Guides

Suing the military - Classic case baring active duty military personnel from suing for service related torts - Feres v. U.S., 340 U.S. 135 (1950)

United States Attorneys’ Bulletin on the FTCA

Personal Liability Tort Litigation Against Federal Employees

The Statute of Limitations of the Federal Tort Claims Act as a

Jurisdictional Prerequisite to Suit and the Implications for Equitable
Tolling

An Underutilized Defense: State Statutes of Repose as a Bar to FTCA
Medical Malpractice Actions

Litigating Venue in Federal Tort Cases

Affirmative Contribution, Indemnification, and Subrogation Claims
Arising in FTCA Cases

Raising State Pre-Litigation Screening or Certificate of Merit Statutes in
FTCA Medical Malpractice Actions

Federal Tort Claims Act (FTCA) Health Center Policy Manual - suing federally qualified health centers

Clinician’s Handbook On the Federal Tort Claims Act – Edition II - 2001

Federal Tort Claims Handbook, current through 1999. Excellent research guide.

Judge Advocate General FTCA training materials, 1999.

Key Cases Establishing the Extent of Liability under the FTCA

D.L. by & through Junio v. Vassilev, No. 15-15542, 2017 WL 2408179 (9th Cir. June 5, 2017) - Plaintiff filed against community health center physician and others in state court as ordinary negligence case. When the US moved the case to federal court because the FTCA applied, plaintiff dismissed the case. Plaintiff then filed the administrative demand and refiled the against the physician in state court when the government denied the claim. Court ruled the action could state in state court with other defendants as a matter of judicial economy.

Simmons v. Himmelreich, No. 15-109., 2016 BL 179234 (U.S. June 06, 2016) - The Court find that the judgment bar provision in the FTCA does not bar a subseqent Bivens action when the original action is dismissed because the action was a discretionary function. Discretionary functions are an exception under the FTCA, meaning that if the action is a discretionary function, there is no jurisdiction to sue for the consequences of the action under the Act. Thus there cannot be a judgment under the act because there is no jurisdiction under the act. Since there is no judgement, there is no judgement to bar the Bivens action. this makes sense because Bivens goes to the legality of the discretionary action.

In re Katrina Canal Breaches Litig., No. 14-30060, 2015 WL 3407410 (5th Cir. May 28, 2015) - 5th Circuit reviews standard for discretionary authority defense and finds that applies to cases brought against the Federal government under the admiralty laws. Admiralty based claims for damage allegedly caused by dredging MRGO were dismissed as discretionary actions covered by the statutory defense.

Wu Tien Li-Shou v. United States, No. 14-1206, 2015 BL 16262 (4th Cir. Jan. 23, 2015) - Plaintiff's husband was accidently killed in an attack on pirates off Africa. She sued under admirality statutes. The court found that separation of powers implies a discretionary function defense in these laws that prevents the courts from examining military decisions. Good discussion of parallels with the FTCA.

Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015), cert. denied, 136 S. Ct. 1155 (2016)

This case sorts out the statute of limitations issues when there is a real denial of a claim after a deemed denial. The basic rule is that you cannot file in court until the agency actually rules on your claim and sends you notice of the ruling, or until six months after initial filing if the agency does not act. The twist is that there is no tolling of the SOL in a deemed denied claim - the plaintiff can file any time in the future. If, however, at some point after the 6 months deemed denied period, the agency issues a real denial and notice, a separate provision in the law starts a 6 month SOL running. In this case, the plaintiff filed too early on a deemed denied claim, and while that was pending, there was a real denial by the agency. The deemed denied claim was dismissed, and the plaintiff did not refile until more than six months after the real denial. After a good analysis of the provisions, the court found that new claim was barred.

Court dismisses Katrina Levee Breach cases under FTCA - In re Katrina Canal Breaches Litigation, 696 F.3d 436 (5th Cir.(La.) (All the Katrina cases were FTCA cases. See Katrina Cases)

Immunity of federal employees from suit (Westfall Act Immunity) - Osborn v. Haley, 549 U.S. 225 (2007) - excellent discussion of the Westfall Act, which allows the Attorney General to certify that an employee is acting with the course and scope of employment. This certification is binding on the court and cannot be challanged at trial, even if the government also pleads that the incident did not occur.

Plaintiff's can go forward with claims against the Army Corp of Engineers based on failure of a navigation canal during Katrina - Feb 2007.

Federal tort claims act does not apply to actions outside the U.S. - Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 542 U.S. 692, 159 L.Ed.2d 718 (2004)

Establishing duty under the FTCA (polio vaccine) - United States v. St. Louis University, 336 F.3d 294 (4th Cir. 2003)

Court rejects tort claims against government for alleged injuries by private research contractors - Heinrich v. Sweet, 308 F.3d 48 (1st Cir. 2002)

How Specific Must the Notice be in FTCA Cases? - Goodman v. U.S., 298 F.3d 1048 (9th Cir. 2002)

Tolling the FTCA Statute of Limitations/Federally Funded Community Health Centers are Covered by the FTCA - Motley v. U.S., 295 F.3d 820 (8th Cir. 2002)

Supreme Court limits the Flood Control Act of 1928 - Central Green Co. v. United States, 531 U.S. 425 (2001)

Navy not liable under FTCA for recruiter who spread STI - Leleux v. United States, 178 F.3d 750 (5th Cir. 1999) - Navy recruiter in Lafayette, LA, gave underage recruit genital herpes. She sued the Navy under FTCA, but the court found that since the recruiter knew he was infected, it was a battery and thus exempt under the FTCA.

Intentional infliction of emotional distress allowed under the FTCA - Truman v. United States, 26 F.3d 592 (5th Cir. 1994)

Discretionary function immunity extends to day to day regulatory activities, not just high level policy making - United States v. Gaubert, 499 U.S. 315 (1991)

Governmental Liability for Rabies Contracted by Lab Worker - Andrulonis v. United States, 924 F.2d 1210 (2nd Cir. 1991)

Navigation channels for levee construction are covered by the Flood Control Act immunity - Mocklin v. Orleans Levee District and Its Board of Levee Commissioners, 877 F.2d 427 (5th Cir. 1989)

Brief - Governmental Immunity and Public Health Agency Actions - Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988)

Governmental Immunity and Discretionary Authority - Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988)

Soldier cannot sue government for LSD experiments - U.S. v. Stanley, 479 U.S. 1005 (1986)

Are recreational waters governed by the Flood Control Act of 1928 - United States v. James et al., 478 U.S. 597 (1986)

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984)

Liability for Swine Flu Vaccine - Unthank v. United States, 732 F.2d 1517 (10th Cir. 1984)

Portis v. Folk Constr. Co., 694 F.2d 520 (8th Cir. 1982) - contractor is also immune under FCA

When does the SOL start to run on FTCA cases - United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)

Lunsford v. United States, 570 F.2d 221 (8th Cir. 1977) - No FTCA class actions under the FCA.

Does federal funding trigger the FTCA - United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976).

Absolute immunity of the Corp of Engineers for flood damage - Florida East Coast Railway Co. v. United States, 519 F.2d 1184 (5th Cir. 1975)

Flood Control Act immunity does not appy to navigation projects - Graci v. United States, 456 F.2d 20 (5th Cir. 1971) - Graci on remand - no negligence. Original district court ruling.

Peterson v. United States, 367 F.2d 271 (9th Cir. 1966) - Flood Control Act (FCA) does not apply to breaking up an ice jam leading to a flood.

FTCA Applies to Federal Prisons - United States v. Muniz et al., 374 U.S. 150 (1963)

Atomic Bomb Cases - Suits against the US for exposing persons to fallout from nuclear testing. Ultimately rejected as falling into the discretionary authority defense.

Flood Control Act of 1928 History - National Mfg. Co. v. United States. Great Western Paint Mfg. Corp., 210 F.2d 263 (8th Cir. 1954)

Texas City Disaster - History of the FTCA - Dalehite v. U.S., 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953)