Q: If I am injured or my property is damaged by a federal employee, can I sue the United States?
A: Maybe. Generally, you cannot sue the United States of America for injuries or property damage based on the common law doctrine of sovereign immunity—the concept that you “can’t sue the king.” However, through the Federal Tort Claims Act (FTCA), the United States specifically permits injured persons to bring certain tort claims against the government.
To begin, it is important to know that the FTCA only allows a claim against federal employees for injuries, wrongful death or property damage caused when they are acting in the scope of their employment, and the statute does not apply to claims against a government contractor. Let’s say, for example, that your car is hit by a U.S. Postal Service van driven by a postal employee delivering mail, or you are injured as a result of negligent medical treatment received at a VA hospital. If you have a claim the FTCA provides that mechanism that allows you to bring a claim to recover for damages caused in these situations.
The FTCA also only allows you to pursue claims for injury or loss of property, personal injury or wrongful death caused by a federal employee’s negligence as long as a similar claim would prevail against a private person in the state where the negligent act or omission occurred. So, if Ohio law prohibits a particular cause of action, you cannot pursue that claim against the United States.
Q: Are there tort claims possibly permitted by Ohio law that I cannot pursue against the federal government?
A: Yes. The FTCA contains several exceptions that prohibit you from filing a claim against the United States even if Ohio law permits it. For example, the FTCA prohibits claims for certain intentional torts committed by federal employees, such as claims for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights, unless the claim arises from a negligent act committed by a United States investigative or law enforcement officer.
Q: How do I pursue a claim against the United States under the Federal Tort Claims Act?
A: In most cases involving personal injury, wrongful death or property damage, you can head straight to court to pursue your claim, but if your claim falls under the FTCA, you cannot do that. You must first file an “administrative claim” directly with the agency you believe is responsible for your injuries or damages. Using the previous examples, your claim for property damage or injuries caused by a postal vehicle would be filed with the United States Postal Service, and a medical malpractice claim resulting from care at a VA hospital would be filed with the Department of Veterans Affairs. If you skip this administrative step and file a claim directly in court, your claim will be dismissed.
Q: Is there a time limit for me to pursue my claim?
A: Yes, and if you miss any deadlines, your claim may be dismissed. Your administrative claim under the FTCA must be filed with the appropriate agency within two years from the date of injury or damage. Once your claim is filed, the agency has six months to respond. An agency can agree or admit responsibility for the claim or an agency can reject responsibility or refuse to pay any damages alleged for the claim. If the agency rejects the claim or refuses to pay, you have six months from the date the rejection/refusal notification is mailed to you to file a lawsuit in court. The six-month filing deadline begins when the agency actually issues its rejection. So, if the agency doesn’t issue any decision within the six-month administrative review period, once the six-month administrative review period has lapsed, you can choose to wait for the agency’s decision or you can go ahead and file a lawsuit to pursue your claim in court. A lawsuit for an FTCA claim can only be filed in court after all “administrative remedies” have been exhausted.
Q: What information must I include in my claim?
A: You should provide as much information as you have available or that can be obtained to support your FTCA claim. You must include facts, identify witnesses, share expert witness opinions and provide sufficient information so the agency can review the full merits of your claim. Also, you must specifically include an exact amount of monetary damages you are claiming the agency owes or will owe you along with any supporting documentation to verify the amount of claimed damages. Special care in calculating claimed damages, including current and future losses, for your FTCA claim is needed, since any award or judgment is limited to the amount requested for the claim in the administrative service review phase. The federal government has created a standard form, known as Standard Form 95, or SF 95, to use when submitting an administrative claim under the FTCA. The form is available online or from any federal agency. You don’t have to use this form when submitting your administrative claim, but it is a useful tool.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cincinnati attorney Theresa L. Nelson Strauss Troy Co., LPA.