1. Federal Tort Claims Act
History and Procedure

2. Federal Tort Claims Act
Went into effect in 1945
All torts were private bills before then
Tied up Congress and encouraged corruption
Provides an agency based administrative compensation adjudication for tort injuries.
Administrative compensation decisions are appealable to the federal district court.

3. Who Adjudicates the Claims?
“The head of each Federal agency ... may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency…”

4. What are the Tort Standards?
No systematic federal tort law
Looks to the law of the state where the tort occurred for the standards for the tort:
“…under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred…” § 2672
Includes state tort reform limits

5. Who are You Suing in an FTCA Case?
A primary purpose of the FTCA is to protect federal employees from personal liability.
Congress does not want employees making decisions based on liability fears.
If you sue an individual, the government is substituted for the individual.
Does not apply if the employee is acting beyond course and scope of employment.

6. Limitations on Liability - Sec 2674
“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”
[special provisions for death cases – no longer relevant]
No strict liability
No intentional torts in the original version.

7. Other Exceptions in the FTCA
(f) Any claim for damages caused by the imposition or establishment of a quarantine by the United States.
(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.
(k) Any claim arising in a foreign country.
There are several agency specific exceptions.

8. What is the Effect of an Exception?
Remember, statutes in derogation of immunity are construed narrowly.
The FTCA waived immunity.
If an action is exempted from FTCA coverage, then immunity is not waived.
There is no liability unless the claim falls under the jurisdiction of the Court of Federal Claims.

9. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
This is an alternative remedy case, which you may have seen in ACJ.
Federal agents broke into plaintiff’s home and handcuffed him without a warrant.
The court recognized that the exclusionary rule is worthless to an innocent man.
Intentional torts were excluded from the FTCA, so the court created a federal constitutional tort remedy for damages.

10. Limitations of Bivens
Direct action against the individual employees for violations of constitutional rights – intentional torts - not covered by the FTCA.
Not an action against the government.
No vicarious liability.
You must show supervisors know and support the actions that cause the injury and they are also sued individually.
Created a flood of claims.

11. Congress Responded by Amending Section (h)
Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

12. The Impact of the New 2680(h)
Has become a substitute for a Bivens action for covered officers.
The intentional torts of non-law enforcement employees are not covered by the FTCA.
medical personnel in a detention center were found liable under Bivens for conscious indifference to a prisoner’s medical needs.

13. Who Pays Bivens Claims?
Research shows that while Bivens is a personal action for intentional torts, the government almost always pays the damages in successful claims because they are within course and scope of employment.

14. What is the Future of Bivens?
The United States Supreme Court has recently refused to extend Bivens to any new areas.
The majority argues that it is up to Congress to expand the remedy, as it did when it amended the FTCA to cover law enforcement torts.
It is likely that Bivens is limited to existing precedent, barring a major United States Supreme Court shift in attitude or personnel.

15. Filing an FTCA Claim

16. Form 95

19. What Constitutes a Properly Filed Claim?
A claim shall be deemed to have been presented when
a federal agency receives from a claimant, his duly authorized agent, or legal representative, an executed standard form 95 or other written notification of an incident,
accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.
The claim must be presented to the appropriate federal agency within two years after the claim accrues.(Form 95)

20. FTCA Claim v. Complaint in Federal Court
Record review adjudication, not a hearing.
Must provide enough info on the facts to allow the agency to investigate the claim.
Does not put the agency on notice for other facts.
The statute of limitations runs on facts not relied on in the claim.
Must provide a specific dollar claim as opposed to a general demand in excess of jurisdiction.

21. Can You Go Directly to Court, without Filing a Claim?
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

22. What if You Go to Court without Filing a Claim?
Jurisdiction is contingent on following the administrative requirements.
We will explore this in more detail later in the course as exhaustion of remedies.
If you do not follow the statute before going to court, your claim will be dismissed.
Since you do not have jurisdiction unless you comply with the statute, there is little room for the court to create equitable exceptions.

23. What if the Agency Ignores Your Claim?
“The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.”

24. What are You Litigating in District Court?
You are technically litigating the denial of your claim by the agency.
You have to plead your compliance with the statute as part of your statement of jurisdiction.
Otherwise the complaint looks like a torts action.
While you can have multi-party litigation, you cannot have class actions.

25. Test Your Knowledge
Who are you suing in an FTCA claim v. a Bivens claim?
How does an FTCA claim differ from a complaint in district court?
What is the procedure for filing an FTCA claim?
When can you go to court?