Government Liability: How to Assert Your Rights under Ftca and 1983

The Federal Tort Claims Act waives the United States' sovereign immunity for money damages claims arising from the negligent or wrongful acts of federal employees acting within the scope of their employment, and the FTCA excludes assault, battery, false imprisonment, false arrest, malicious prosecution, and other intentional torts from its waiver; although the intentional tort exception's last proviso restores coverage when these acts are committed by federal law enforcement officers.

Federal court trial and personal injury attorney counsel can advise on FTCA coverage and exclusions and develop the federal tort claim strategy.

The discretionary function exception preserves sovereign immunity for claims based upon the exercise of a discretionary function by a federal employee, and the Supreme Court has held in Berkovitz v. United States and United States v. Gaubert that the exception applies to conduct involving an element of judgment or choice reflecting considerations of public policy even when the government employee exercises that discretion negligently, while a failure to perform a ministerial duty does not qualify for the exception.

Administrative cases and government contracts counsel can advise on the discretionary function exception and develop the sovereign immunity defense strategy.

To establish a Section 1983 claim, a plaintiff must prove that the defendant was acting under color of state law and that the defendant's conduct deprived the plaintiff of a right secured by the Constitution or laws of the United States, and under the Monell v. Department of Social Services doctrine a municipality can be held liable only if the constitutional violation was caused by an official policy or custom (not merely by the independent misconduct of a municipal employee) because respondeat superior liability is unavailable against municipalities.

Civil rights and equal opportunity employment and civil litigation counsel can advise on Section 1983 and Monell claims and develop the Section 1983 filing strategy.

The Bivens doctrine provides a judicially created cause of action for damages against individual federal officials who violate a plaintiff's constitutional rights, but the Supreme Court has significantly curtailed Bivens claims in Ziglar v. Abbasi, holding that courts should decline to extend the remedy to new contexts and that any alternative remedial structure may counsel hesitation, such that Bivens is now most reliably available only for Fourth Amendment excessive force and Fifth Amendment due process violations.

Federal employment law and public corruption counsel can advise on Bivens action requirements and develop the Bivens and federal officer liability strategy.

Qualified immunity shields government officials from Section 1983 and Bivens claims unless their conduct violated a clearly established constitutional right of which a reasonable person would have known, and the clearly established law standard requires the plaintiff to identify a prior case in which a government official was held to have violated the Constitution under materially similar circumstances ; a requirement made even more demanding by the Supreme Court's decision in Pearson v. Callahan.

Appellate litigation and federal appeals counsel can advise on qualified immunity standards and develop the qualified immunity challenge strategy.

A plaintiff seeking to overcome qualified immunity must identify a prior case from the Supreme Court, the relevant circuit court of appeals, or a consensus of other circuits in which a government official was held to have violated the Constitution under factually similar circumstances, and courts and commentators have increasingly criticized the qualified immunity doctrine as placing an impossible burden on plaintiffs by requiring them to identify prior cases with a level of specificity that no prior case is likely to match.

Civil litigation evidence and injunctive relief counsel can advise on overcoming qualified immunity and develop the civil rights litigation strategy.

A Federal Tort Claims Act claimant must first present the claim to the appropriate federal agency by filing a Standard Form 95 within two years of accrual, and the agency has six months to issue a final denial ; if the agency does not respond, the claimant may treat the silence as a final denial and file suit, but if the agency responds with a denial, the claimant has six months from the date of the denial to file suit, while Section 1983 claims are subject to the personal injury statute of limitations of the state where the claim arose.

Government contract disputes and municipal law counsel can advise on exhaustion requirements and filing deadlines and develop the claim filing strategy.

An FTCA claimant who prevails at trial may recover compensatory damages but may not recover punitive damages or prejudgment interest against the United States, while Section 1983 plaintiffs may recover compensatory damages, punitive damages against individual defendants but not against municipalities, and injunctive relief ; and municipalities are not liable under respondeat superior absent a policy or custom, but individual supervisors may be liable for their own affirmative participation in a constitutional violation.

Compensatory damages and civil action for damages counsel can advise on damages and injunctive relief and develop the government liability recovery strategy.