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The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment. 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.' 28 U.S.C. S 1346(b). Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual.

28 U.S.C. S 2680(h) provides that the 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 contract rights. However, it also provides an exception. The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The government is not liable if the claim against law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract. Congress has not waived the government's sovereign immunity against all law enforcement 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 Government, whether or not the discretion involved be abused.' 28 U.S.C. S 2680(a).

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' 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 considerations of 'social, economic, and political policy.' 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 Cir.'90) (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. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84); see also Richards v. U.S., 369 U.S. 1, 11-13 ('62).

Under California law, a California court would apply federal law to determine whether an arrest by a federal officer was legally justified and hence privileged. See Trenouth v. U.S., 764 F.2d 1305, 1307 (9th Cir.'85) (applying federal law in an FTCA action for false imprisonment to determine legality of arrest by Department of Defense officers in California); cf. Gasho v. U.S., 39 F.3d 1420, 1427-32 (9th Cir.'94) (applying federal law in FTCA false imprisonment action against federal customs officials to determine if probable cause justified arrest in Arizona).

A plaintiff 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 ('94).

The substitution provision of the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides that '[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his 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. S 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 the FTCA.' H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988)

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 ('76); Letnes v. U.S., 820 F.2d 1517, 1519 (9th Cir.'87).