FEDERAL TORT CLAIMS ACT

Enacted in 1946 the Federal Tort Claims Act
(FTCA) (60 Stat. 842) removed the inherent
IMMUNITY of the federal government from most
TORT actions brought against it and established
356 FEDERAL SUPPLEMENT®
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Editionthe conditions for the commencement of such
suits.
The FTCA permits persons to sue the gov-
ernment of the United States in federal court 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, 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.A. § 1346(b))
In passing the FTCA, Congress allowed the fed-
eral government to be sued. Congress also made
specific exceptions to the act, and the U.S.
Supreme Court has interpreted one provision
broadly, both actions resulting in the dismissal
of many plaintiffs’ lawsuits.
In consenting to be sued, the federal govern-
ment waived the SOVEREIGN IMMUNITY it had
enjoyed in the past. Justice OLIVER WENDELL
HOLMES JR. , in Kawananakoa v. Polyblank, 205
U.S. 349, 27 S. Ct. 526, 51 L. Ed. 834 (1907),
explained that a “sovereign is exempt from suit,
not because of any formal conception or obso-
lete theory, but on the logical and practical
ground that there can be no legal right as against
the authority that makes the law on which the
right depends.” As early as the 1821 case of
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.
Ed. 257, the Supreme Court recognized the sov-
ereign immunity of the United States.
Nevertheless, during the nineteenth century,
Congress consented to let the federal govern-
ment be sued in several causes of action. Con-
gress established the Court of Claims in 1855
(28 U.S.C.A. § 171) to entertain contract actions
against the United States. The passage of the
TUCKER ACT (28 U.S.C.A. § 1346[a] [2], 1491) in
1887 broadened that court’s jurisdiction to
include designated nontort actions, including
EMINENT DOMAIN cases. But, until 1946, there
was no readily accessible remedy for tort actions
brought by citizens of the United States. The
routine recourse was for members of Congress
to introduce private bills for constituents who
had been injured by government NEGLIGENCE.
Congress eventually recognized that the private
bill method was not an effective way to deal with
the problem and passed the FTCA.
Now a person who alleges that an employee
of the federal government has caused injury
must commence a lawsuit pursuant to the
FTCA. Once filed, the FTCA lawsuit becomes
the plaintiff ’s exclusive remedy, regardless of any
statute that expressly or impliedly permits
actions against a designated agency. A federal
judge hears the case without a jury.
Congress did not categorically waive sover-
eign immunity in the FTCA. The act contains 13
exceptions, which release the federal govern-
ment from any liability for, among other things,
enforcing unconstitutional statutes, losing let-
ters in the post office, actions of the military in
time of war, damages caused by the fiscal opera-
tions of the TREASURY DEPARTMENT or regula-
tion of the monetary system, collecting custom
duties, claims arising in a foreign country, and
most intentional torts (28 U.S.C.A. § 2680).
The most important and troublesome
exception has been the FTCA discretionary
function exception. Under this provision, the
waiver of immunity does not apply to any 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. § 2680[a]). In Dalehite v. United States,
346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953),
the U.S. Supreme Court broadly interpreted the
discretionary function exception to include all
situations involving the formulation or execu-
tion of plans that were drawn at a high level of
government and that entailed exercise of judg-
ment. In Dalehite, federal government workers
in Texas were negligent in packing and shipping
explosive material, and their negligence resulted
in the death of 536 people. The Court ruled that
the workers were following specifications pre-
pared by superiors in Washington, D.C., who
were exercising their discretion. Therefore, the
discretionary function exception applied and
the government was immune from suit. The
Court distinguished between decisions made at
the planning and policy stage and those con-
ducted at the lower, or “operational,” levels that
implement the policy decisions, even if some
judgment or discretion is exercised in carrying
out such decisions.
The Dalehite decision has limited the effec-
tiveness of the FTCA for persons injured by the
government. Some commentators have criti-
cized the Court for allowing the discretionary