by Marty Banks
Ms. Hiker, a longtime client and novice outdoors enthusiast, fell and was seriously injured while attempting to scale a mountain peak in a wilderness area managed by the U.S. Forest Service (the "Forest Service"). The rangers who came to the aid of Ms. Hiker told her that the route she was following was for expert mountaineers only. Ms. Hiker said to them that she had not been made aware of this fact and that if she had she would never have embarked on her unpleasant adventure. Another client, Mr. Rancher, has come to you claiming that a Bureau of Land Management (the "BLM") range administrator wrongly ordered Mr. Rancher's cattle off of the public range and that as a result the value of his herd has diminished.
With approximately 32.5 million acres of land being managed by various agencies of the U.S. government, nearly 60 percent of Utah's land area is under federal control.1 In addition to managing a sizeable portion of land within the state, the federal government is also a major employer in Utah, having some 28,000 civilian workers.2 In light of these statistics, many attorneys practicing in Utah encounter situations like those described above.
Both of the clients above have potential claims against the United States under the Federal Tort Claims Act (the "FTCA"). But how does filing suit under the FTCA differ from filing suit against any other tortious actor? Actually, the differences are numerous, and missteps while wading through the procedural requirements and substantive aspects of the FTCA can be fatal to a client's claim. To properly advise clients, a working knowledge of the procedures and substance of the FTCA is essential.
First, some history. Before the enactment of the FTCA in 1946, the federal government was largely immune to suit. American jurists, citing the common law canon that "the king can do no wrong," adhered to the doctrine of sovereign immunity.3 Anyone wanting to sue the federal government had to petition Congress for a bill specifically authorizing his or her cause of action.4 As the docket of cases awaiting congressional action grew, Congress saw fit to construct a statute authorizing private tort claims against the U.S. government.
The FTCA provides for a limited waiver of sovereign immunity, allowing the public at large to seek damages for the negligence of certain federal employees or agents. Specifically, the FTCA waives sovereign immunity in claims for damages "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."5
II. Procedural Requirements of the FTCA
A. The Claim
The first step in obtaining a recovery under the FTCA is the requirement of filing an administrative claim for damages with the responsible federal agency. This is a jurisdictional prerequisite, and the claim must be denied by the responsible agency before the filing of a lawsuit. The preferred and most convenient method of doing so requires Standard Form 95 to be filled out, although other written means of notification may suffice.6 Form 95 can be obtained on-line from the U.S. Department of Justice or upon request from the particular federal agency.7 If a claim is made other than on the standard form, practitioners should be aware that the claim must be for a sum certain.
Determining the correct federal agency to file with should be a fairly simple exercise. But if this task proves difficult, take note that a federal agency receiving a claim not attributable to its actions has a duty to transfer that claim to the appropriate agency.8 If the agency receiving the claim fails to make a prompt transfer to the correct agency, resulting in the expiration of the two-year statute of limitations, the claim will be considered as having been constructively filed.9 However, if the filing deadline is imminent, extra care should be used to file with the correct agency. A recent Tenth Circuit decision held that last-minute claims presented to the wrong agency may be barred.10
B. The Timing
The administrative claim must be filed within two years of the accrual of the claim.11 The date of accrual is determined by federal law, and the statute of limitations begins to run when the claimant learns of his or her injury and its cause.12 Upon receipt, the agency has six months to either settle or deny the administrative claim. While the agency must notify the claimant of any denial of the claim, if the agency fails to notify the claimant of the denial within the six-month period, at his or her option the claimant may deem the administrative claim to have been denied and may then proceed to file a lawsuit with the U.S. district court.13 Upon denial of the administrative claim, the claimant has six months to file his or her lawsuit. Instead of the normal 20 days, the Federal Rules of Civil Procedure allow the U.S. government 60 days, rather than the normal 20 days, to serve its answer.14
C. The Damages
The federal government is not liable for punitive damages under the FTCA, and it cannot be held liable for interest that accrues on the claim before final resolution.15 Potential damages may also be limited by state-imposed tort liability caps. The FTCA remedy is an exclusive one, and additional suits against government employees as individuals are barred once it is established that the federal employee was acting within the scope of his or her employment.16
D. The Fee
The FTCA limits the fees that attorneys may charge for handling any claim arising under its purview. An attorney may neither charge nor collect more than 20 percent of any administrative settlement made before the institution of the lawsuit.17 After the complaint has been served, the lawyer is limited to a fee no greater than 25 percent of any judgment or any settlement negotiated before judgment.18 The penalties authorized by the FTCA consist of up to a $2,000 fine and a one-year term of imprisonment.19
III. Substantive Considerations Under the FTCA
A. The Applicable Law
Although tort claims against the federal government are made possible by the FTCA, state tort law governs the finding of liability. The federal government may only be held liable "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."20 To prevail on his or her claim, the plaintiff under the FTCA must establish the state law elements of his or her prima facie case and be able to withstand any affirmative defenses. The federal government may take advantage of any state law defenses, even those normally available only to private individuals.
Federal law displaces state law in only a few minor areas. First, as mentioned above, the timing of an action under the FTCA is governed by federal law. Second, categorization of the potentially tortious actor as acting inside or outside the scope of his or her employment is governed by the definition of "federal employee" as stated in the FTCA itself21 and by the factual determinations of the Attorney General or a delegated representative.
B. The Exceptions
Section 2680 of the FTCA lists the various express exceptions to the FTCA's waiver of immunity. Among the claims excepted are:
- negligence in the carriage of mail
- claims in admiralty
- claims arising in foreign countries
- damages due to federal quarantine
- assault, battery, false imprisonment, malicious prosecution, libel, slander, misrepresentation, abuse of process, and interference with contractual rights
- claims for damages caused by fiscal actions of the U.S. Treasury or federal bank
- claims arising out of combat activities
Section 2680 also retains immunity against claims arising out of the act of a federal employee "exercising due care" in the administration of a statute as well as those claims arising out of the discretionary act of a federal employee.22 The due care exception operates regardless of the validity of the statute in question and prohibits the challenging of federal statutes on a tort law theory.23 The operation of the so-called "discretionary function" exception is very broad and is governed in large part by the landmark U.S. Supreme Court case Dalehite v. United States.24 In Dalehite, the Court held that the policy and planning activities of federal agency executives were discretionary actions and thus exempt from suit under the FTCA. The Court went on to state that "[w]here there is room for policy judgment and decision there is discretion."25 The Court excepted the actions of not just lower level employees who were simply following instructions, but "all [federal] employees exercising discretion."26 The discretionary function exception thus became a very broad exception to the waiver of sovereign immunity.
In United States v. Varig Airlines, the U.S. Supreme Court widened this broad exception even further.27 By holding that "it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case[,]" the Court widened the exception to potentially include the actions of any federal actor exercising even the slightest discretionary power.28
Another important exception to the FTCA's waiver of immunity is the exception known as the "Feres Doctrine." In Feres v. United States,29 the U.S. Supreme Court barred actions against the federal government for injuries received by military personnel during the performance of their duties or any activity incident to that performance. The doctrine has been consistently and broadly applied to deny the claims of service members injured by the negligent actions of the military.
IV. FTCA Cases in Utah
A. The BLM
The majority of FTCA claims that involve the BLM arise out of disputes over the proper administration of grazing lands and permits. In Barton v. United States,30 a BLM official, in response to severe drought conditions and in an effort to preserve the land, ordered the plaintiff ranchers to remove their cattle from a particular allotment of the public range. The plaintiffs claimed that the BLM's order was both improper and negligent and that as a result they were forced to sell their herd at a loss. A second claim alleged that as a result of a negligent land transfer between the state of Utah and the United States, state grazing range on which the plaintiffs had previously set their herd became inaccessible.
The district court cited a portion of the Federal Range Code for Grazing Districts (the "Range Code"), which grants BLM officials the authority to suspend grazing privileges as is necessary,31 and concluded that an order to remove a herd from the range fell under the discretionary exception provision of the FTCA. In support of this conclusion the court noted that the Range Code does not provide any set criteria for determining whether range land suffering the effects of drought can sustain grazing. Rather, the Range Code leaves decisions of this sort in the hands of BLM administrators.
On appeal, the Tenth Circuit affirmed the decision of the district court and in doing so explicitly stated the test to be used in determining whether a federal employee's actions fall under the discretionary exception of the FTCA.32 The court stated that
if a government official in performing his statutory duties must act without reliance upon a fixed or readily ascertainable standard, the decision he makes is discretionary and within the exception of the Tort Claims Act. Conversely, if there is a standard by which his action is measured, it is not within the exception.33
In Kunzler v. United States,34 another grazing dispute, the plaintiff, the federal government, and a third party owned various intermingled parcels of land within a federal grazing district. The BLM issued the third party a permit to graze its herd on the federal lands within the district. The cattle, owing to the intermingled pattern of land ownership, ended up trespassing on lands owned by the plaintiff. The plaintiff in turn filed suit against the federal government alleging that having known the pattern of land ownership, the BLM wrongfully granted the third party's permit and in fact encouraged the resulting trespass.
The district court found in favor of the United States, citing the discretionary exception provision of the FTCA. In doing so the court concluded that the granting and denial of federal grazing permits is a discretionary function of BLM administrators and that as a discretionary act the granting of a permit is not grounds for suit under the FTCA.
The Tenth Circuit instructed the court below to dismiss the plaintiff's trespass claim and adopted a similar position in United States v. Morrell,35 a dispute over grazing permits arising out of Box Elder County. The facts of Morrell are quite similar to those of Kunzler in that the plaintiff in Morrell was leasing thousands of acres of federal land that were widely interspersed with public rangeland. The BLM granted a third party the right to graze its herd on this rangeland and did so in full knowledge that grazing these lands without trespassing upon the plaintiff's lands was an utter impossibility.
The Tenth Circuit held that although BLM administrators anticipated the trespass of the third party's cattle, this anticipation arose during the exercise of the discretionary act of approving a permit. The court went on to state that "[k]nowledge of conditions which will result from the performance of discretionary duty does not eliminate the discretionary character of the act done."36
The actions of BLM administrators in failing to either place signs warning of dangerous terrain or making that terrain safe for recreational use came into question in Ewell v. United States.37 In Ewell, the young passenger on a motorcycle was injured in a crash that occurred on land being used as a gravel pit and administered by the BLM. The plaintiff alleged that failure to keep the area safe for recreational uses and/or failure to erect signs indicating the presence of hazardous conditions amounted to negligence on the part of the government.
In ruling for the defendant United States, the district court noted both that the case was governed by Utah tort law and that under the FTCA the federal government could only be held liable when under the same circumstances a private individual would be held liable. The Utah Limitation of Landowner Liability Act38 shields private individuals who freely open their land to recreational use from liability for the negligent maintenance of their land and/or failure to warn of any dangerous conditions.39 The court allowed the federal government to take advantage of this shielding and granted summary judgment to the defendant United States. The Tenth Circuit affirmed the district court's decision, holding that "immunities created by state law which are available to private persons will immunize the federal government because it is liable only as a private individual under like circumstances."40
B. The Forest Service
The majority of FTCA cases arising from acts of the U.S. Forest Service have sought damages for personal injuries. In Figueroa v. United States,41 a young boy was killed by a falling rock at a picnic area managed by the Forest Service in American Fork Canyon. In response to a tragic death in the same manner just one year before this incident, the Forest Service erected three signs warning of the danger of rocks falling from the ledge overhanging the picnic area. The young boy and his family had walked past these signs as well as a fence erected in an attempt to keep people away from the danger. His surviving family members filed suit against the federal government claiming that the Forest Service had negligently failed to warn them of the danger.
In response, the government claimed that its decision to place barriers that could be easily circumvented was a discretionary decision and thus any lawsuit resulting from this decision was barred by the discretionary function exception. The district court employed a two-pronged test to determine if the exception applied in this case. First, the court determined that the decision of the Forest Service employees was in fact discretionary. Any decision in which a course of action is not specifically ordered by regulation will satisfy this prong. The second prong of the test asks whether the discretionary action was one that the FTCA was intended to except. Here, the court found that "[g]arden variety discretion-exemplified by the High Court as a driving decision by a government employee-is simply not protected."42 The court went on to state that only decisions with political, social, or economic ramifications would retain immunity from suit. The court found that any decisions concerning the adequacy of warnings (the policy decision concerning the necessity of placing warnings having already been made) did not satisfy this second prong of the test, leaving the United States open to liability.
On a second theory, the United States argued that the Utah Limitation of Landowner Liability Act (the "ULLLA") exempted it from suit. The court cited a test promulgated in the Utah Supreme Court case De Baritault v. Salt Lake City Corp.43 to determine whether the immunity granted under the ULLLA was available to the federal government. To qualify for this immunity the parcel of land must be characterized as "(1) rural; (2) undeveloped; (3) appropriate for the type of activities listed in the Act; (4) open to the public without charge; and (5) a type of land that would have been open in response to the Act."44 The court concluded that the picnic area in question was not large or remote enough to be considered rural and that the Forest Service itself considered the area as developed and found that the federal government did not qualify for immunity under the ULLLA.
C. The Park Service
In Flynn v. United States,45 three Park Service employees stopped at the scene of a car accident near Moab in order to lend assistance. A driver who was intoxicated, but who also claimed to have been distracted by the flashing lights on top of the employees' Park Service truck, ran into the growing crowd of people assisting those involved in the first accident. Three people were killed. The plaintiff survivor of one of those killed filed suit under the FTCA against the federal government alleging that the Park Service employees were negligent in the manner in which they approached the scene of the accident and that the government itself was negligent in the manner it had trained these employees to respond to emergency situations, thus contributing to the cause of the accident.
The district court, citing the Utah Good Samaritan Act,46 which absolves a defendant of liability for negligence when he or she without charge and in good faith lends aid at the scene of an emergency, found that the Park Service employees involved in this case were immune from suit. The court thus ordered the case dismissed.
The FTCA adds another level of procedural and substantive complications to an already complicated process. With a working knowledge of these procedures and substance, however, practitioners will be able to successfully navigate the workings of the FTCA.
1 U.S. Gen. Acct. Off., GAO Rep. No. RCED 96-40, Land Ownership - Information on the Acreage, Management, and Use of Federal and Other Lands 21 (1996).
2 U.S. Off. of Personnel Mgmt., OMSOE-OWI-68-24, Federal Civilian Workforce Statistics: Biennial Report of Employment by Geographic Area 4 (1998).
3 Barry R. Goldman, Note, Can the King Do No Wrong? A New Look at the Discretionary Function Exception to the Federal Tort Claims Act, 26 Ga. L. Rev 837, 837 (1992).
5 28 U.S.C.A. ¤ 1346(b)(1) (West Supp. 2000).
6 28 C.F.R. ¤ 14.2(a) (1999).
7 Standard Form 95 is available at
8 28 C.F.R. ¤ 14.2(b)(1) (1999); see 28 U.S.C.A. ¤ 2679(d) (West 1994) (description of procedure through which federal agent may appeal finding that he or she was not acting within scope of employment).
9 Hart v. Department of Labor ex. rel. United States, 116 F.3d 1338 (10th Cir. 1997).
10 Id. at 1341.
11 28 U.S.C.A. ¤ 2401(b) (West 1994).
12 United States v. Kubrick, 444 U.S. 111 (1979).
13 28 U.S.C.A. ¤ 2675(a) (West 1994).
14 Fed. R. Civ. P. 12(a)(3).
15 28 U.S.C.A. ¤ 2674 (West 1994).
16 28 U.S.C.A. ¤ 2679(b)(1) (West 1994).
17 28 U.S.C.A. ¤ 2678 (West 1994).
20 28 U.S.C.A. ¤ 1346(b)(1).
21 See 28 U.S.C.A. ¤ 2671 (West 1994) ("[O]fficers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty . . . , and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.").
22 "Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.A. ¤ 2680(a) (West 1994).
23 See Dalehite v. United States, 346 U.S. 15, 33 (1953) (giving concise description of due care exception).
24 Id. at 35 (citation omitted).
25 Id. at 35.
26 Id. at 33.
27 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984).
28 Id. at 813. For an extensive discussion of the effects of the discretionary function exception on the usefulness of the FTCA, see Goldman, supra, 26 Ga. L. Rev at 837.
29 340 U.S. 135 (1950).
30 468 F. Supp. 962 (D. Utah 1979).
31 43 C.F.R. ¤ 4115.2-1(e)(5).
32 Barton v. United States, 609 F.2d 977 (10th Cir. 1979).
33 Id. at 979.
34 208 F. Supp. 79 (D. Utah 1961).
35 331 F.2d 498 (10th Cir. 1964).
36 Id. at 502.
37 579 F. Supp. 1291 (D. Utah 1984).
38 Utah Code Ann. ¤¤ 57-14-1 to -7 (Supp. 2000).
39 See id. (exceptions to this rule (willful, malicious, and deliberate acts do not receive benefit of this shielding; neither do landowners who charge fees for use of their lands)).
40 Ewell v. United States, 776 F.2d 246, 249 (10th Cir. 1985).
41 64 F. Supp. 2d 1125 (D. Utah 1999).
42 Id. at 1132.
43 913 P.2d 743 (Utah 1996).
44 64 F. Supp. 2d at 1135.
4 5902 F.2d 1524 (10th Cir. 1990).
46 Utah Code Ann. ¤ 78-11-22 (1986).
Marty Banks practices with Stoel Rives LLP in the areas of general business litigation and environmental law. The author acknowledges the significant contribution of Joshua Eyer, a second-year law student at J. Reuben Clark Law School, Brigham Young University, in the preparation of this article.