Claims Against the Federal Government

You can sue the United States. But not the way you sue anyone else.

The Federal Tort Claims Act is the only route to compensation when a federal employee injures you: a postal truck, a government fleet vehicle, negligence at a federal facility. It is also a procedural minefield. You must present a written administrative claim to the correct agency, usually on Standard Form 95, stating a sum certain, and wait for the agency to deny it or let six months pass, before a court will hear anything. File in court too early and the case is dismissed. Present it to the wrong agency and the clock keeps running.

There is no jury. Damages are governed by the law of the state where the act occurred. Attorney's fees are capped by statute.

A result

$450,000 in a Federal Tort Claims Act claim arising from a collision caused by a government vehicle. Our client sustained a concussion that did not resolve: more than a year of daily headaches, double vision, vertigo, and impaired memory and concentration. Her physicians kept her out of work for months and then limited her hours, and she lost more than twice as much in earnings as she incurred in medical bills.

And in the D.C. Circuit

Our lawyers have briefed and argued appeals in the United States Court of Appeals for the D.C. Circuit.

The FTCA rules, step by step

You have two years from the date the claim accrues to present it in writing to the federal agency involved, and once the agency mails a final denial, six months to file suit (28 U.S.C. § 2401(b)). Each step has a trap.

1. Present the claim. A claim is presented when the agency receives an executed Standard Form 95 or other written notice of the incident with a demand for money damages in a sum certain (28 C.F.R. § 14.2(a)). A claim sent to the wrong agency counts as presented only when the right agency receives it (§ 14.2(b)(1)).
2. Choose the number carefully. A later lawsuit generally cannot ask for more than the sum certain in the administrative claim, unless the increase rests on newly discovered evidence or intervening facts (28 U.S.C. § 2675(b)). Claiming too little too early can cap the case.
3. Wait for a decision. You cannot sue until the agency denies the claim in writing, or until six months pass without a final decision, which you may then treat as a denial (§ 2675(a)).
4. Sue the United States, not the driver. For a federal employee acting within the scope of employment, the FTCA remedy against the United States is exclusive of any suit against the employee personally (28 U.S.C. § 2679(b)(1)).
5. Try the case to a judge. FTCA tort cases are tried by the court without a jury (28 U.S.C. § 2402). The United States is not liable for punitive damages or interest before judgment (28 U.S.C. § 2674), and attorney's fees are capped at 20 percent of an administrative settlement and 25 percent of a judgment or settlement after suit (28 U.S.C. § 2678).

How FTCA claims differ in D.C., Maryland, and Virginia

The procedure is federal, but liability is decided under the law of the place where the act or omission occurred (28 U.S.C. § 1346(b)(1)). That brings each jurisdiction's own rules into a federal courtroom.

• Fault rules. D.C., Maryland, and Virginia all apply contributory negligence, so the government will look for any fault on your part. In D.C., a pedestrian or vulnerable road user hit by a federal vehicle can invoke D.C.'s rule that the injured person's own negligence bars recovery only if it was a proximate cause and greater than the defendants' combined negligence (D.C. Code § 50-2204.52).
• Where the case is filed. An FTCA suit may be brought only where the plaintiff resides or where the act or omission occurred (28 U.S.C. § 1402(b)). Here that usually means the U.S. District Court for the District of Columbia, the District of Maryland, or the Eastern District of Virginia.
• Deadlines. The FTCA's two-year presentment rule replaces the state filing deadline. That matters most in D.C. and Maryland, where an ordinary injury claim allows three years (D.C. Code § 12-301(8); Md. Code, Cts. & Jud. Proc. § 5-101). A person who assumes the usual three years can lose a federal claim.

If a state or local government, not the federal government, caused the injury, different notice rules apply. See claims against the District of Columbia, claims against Maryland governments, and claims against Virginia governments.

Related reading

• Threatened by a federal officer: a D.C. Circuit ruling on suing the government
• Suing the government in Virginia: the tort claims acts' short deadlines
• Suing the District of Columbia: the six-month notice
• Why a normal MRI does not end a concussion claim
• DMV Injury Guide: government vehicles, Metro, and public property
• DMV Injury Guide: deadlines and the timeline of a case

Responsible attorneys: Ryan C. Posey and Jacob M. Lebowitz. Posey Lebowitz PLLC, 3221 M Street NW, Washington, DC 20007.