I have handled many cases under the Federal Tort Claims Act. The Federal Tort Claims Act (FTCA) is in the statutory law as 28 U. S. C. section 1346(b).
The FTCA allows individuals to sue the United States government in the federal courts for injuries and harms committed by persons acting on behalf of the United States. The FTCA, therefore, acts a as waiver of the federal government's immunity.
Under the FTCA, the government can only be sued 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. In addition, the FTCA does not apply to conduct that is uniquely governmental. In other words, conduct that a private individual is incapable of performing.
28 U. S. C. section 2608(h) provides that the federal government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contractual rights. However, the statute does provide exceptions.
The federal government is liable if a federal law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The federal government is not liable if the claim against federal law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract.
Congress has not waived the federal government's sovereign against federal law enforcement for acts or omissions.
Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the federal government, whether or not the discretion involved be abused. (28 U. S. C. section 2680(a).
In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test as established in Berkovitz v. United States, 486 U. S. 531, 536 (1988). First, the question must be asked whether the conduct involved an element of judgment or choice. United States v. Gaubert, 499 U. S. 315, 322 (1991). This requirement is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. See, Berkovitz, 486 U. S. at 536. Once the element of judgment is established, the next inquiry must be whether that judgment is of the kind that the discretionary function exception was designed to shield in that it involves consideration of social economic, and political policy. See, Gaubert, 499 U. S. at 322-23.
Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government properly to train its employees who engage in that conduct is also discretionary. See, e. g. Flynn v. U. S. 902 F. 2d 1524 (10th Circuit 1990) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary."
The FTCA specifies that the liability of the U. S. is to be determined in accordance with the law of the place where the allegedly tortious act or omission occurred. 28 U. S. C. section 1346(b). In an action under the FTCA, a court must apply the law the states courts would apply in the analogous tort action, including federal law. See, Caban v. U. S., 728 F. 2d 68, 72 (2d Cir. 1984); see also Richards v. U. S., 369 U. S. 1, 11-13 (1962)
An individual cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law. See, FDIC v. Meyer, 114 S. Ct. 996, 1001 (1994).
The substitution provision of the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides that upon certification by the Attorney General that the defendant employee was acting within the scope of his or her office or employment at the time of the incident out of which the claim arose...the United States shall be substituted as the party defendant. 28 U. S. C. section 2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and...instead provide that the exclusive remedy for such torts is through an action against the United States under FTCA.
Under the FTCA, the U. S. is subject to liability for the negligence of an independent contractor only if it can be shown that the government had authority to control the detailed physical performance of the contractor and exercised substantial supervision over its day-to-day activities. See, U. S. v. Orleans, 425 U. S. 807, 814-15 (1976); Letnes v. U. S., 830 F. 2d 1517, 1519 (9th Cir. 1987)
GREGORY CHANDLER, Attorney at Law
