Intro to Filing Personal Injury Claims Against the Government

Prior to 1946, the federal government, its agents, and employees had complete sovereign immunity from personal injury lawsuits. This means that federal agencies could not be held responsible for injuries they caused due to negligence.

The Federal Tort Claims Act

In response to abuses under the system of sovereign immunity, in 1946 the United States Congress enacted a federal law called the Federal Tort Claims Act, or the FTCA. (Tort is a legal term for wrongdoing.)

This new law abolished some, but not all of the sovereign immunity for government agencies and employees. Under the new FTCA, private individuals could now sue the government for their injuries and property damage.

State and Local Tort Claim Acts

Individual state and local governments followed the federal government’s lead and began enacting their own tort claim acts. Although they are essentially the same, there are some important differences, such as:

  • The places the claims must be filed
  • The deadlines for filing those claims

Injuries Covered by Tort Claim Acts

To have a viable claim under federal, state, or local tort claim acts, the employee who caused the injuries must have been on duty, and working in his official capacity at the time of wrongdoing.

A common exception to tort claim acts are Intentional Torts. Normally, if your injuries are caused by the negligence of a government agency, or one of its employees, you are eligible to file a claim or lawsuit for compensation. But, if your injuries are caused by an intentional act, you would not be eligible to file a claim or lawsuit.

For example, if a Social Security clerk, a state motor vehicle clerk, or a town dog catcher intentionally punched you in the face, breaking your nose, the government would not be liable. You couldn’t file a claim against the government agency employing the perpetrator. Of course, you can still pursue legal action against him personally.

There is an exception here: if the employee who assaulted you is a law enforcement officer on duty at the time of wrongdoing, the government can be held liable.

Filing a Claim

To file a notice of claim, you must have the proper government claim form. The forms are easy to get and straightforward. The federal government’s claim form is called the SF 95 Damage, Injury, or Death Form. It can be downloaded from the Government Service Agency’s website at GSA.gov.

For state or local claims, go to the respective agency’s website, or call to get the claim form they require. The forms will ask you some basic information, including:

  • Exact amount of money you’re requesting
  • Location where the injury occurred
  • Name of the government agency
  • Your contact information
  • Date of the injury
  • A brief description of your injury

Filing Deadlines

The FTCA’s filing deadline for negligence claims is two years from the date of injury. Once a claim is filed, the government then has up to six months to respond. You can file a lawsuit in Federal District Court if they deny your request, but the lawsuit must be filed within six months after the denial.

State and local tort claims have similar deadlines, but they’re not all the same. If you’ve been injured by a state or local government agency or employee, you must find out what the filing deadlines are. Go to their respective government websites, or call the department where you were injured.

Be careful! In some cases, the deadline for filing can be as short as 30 days after the injury. If you miss the filing deadline, you may lose your right to make a claim or file a lawsuit.

Where to File the Notice of Claim

You must file federal claims with the specific government agency where your injury occurred, or where the government employee responsible for your injury works. For example, to report a slip and fall injury in your local IRS office, you must file your claim with that office.

You must file state and local claims with the central agency that handles claims for all government departments. If you’ve been injured by a state or local government employee, or on state or local property, go to the official website, or call to get contact information for the department handling negligence claims.

State departments handling negligence claims often go by names like Risk Management, Treasury Department, Insurance Regulators, etc.

Frequently Asked Questions about Filing Personal Injury Claims Against the Government

Where will my claim be heard?

Federal, state, and local claims go to hearing before an administrative law judge, or ALJ. An ALJ is not a judge in the normal sense of the word. She doesn’t preside over civil or criminal jury trials, and is usually appointed rather than elected.

In some agencies, ALJs dress in business suits, and hold hearings in ordinary conference rooms. In other agencies, ALJs wear robes, work in private chambers, and hold hearings in special rooms that look like small courtrooms.

What do I have to prove?

You must be able to support your injuries with credible evidence. Provide as much of the following documentation as possible:

  • Statements from your physician(s) describing the type and extent of your injury
  • A medical prognosis describing how the injury will adversely affect you in the future, including any orders limiting your employment
  • Copies of medical bills and out-of-pocket expenses
  • Proof of lost income from your employer (if self-employed, copies of tax returns and bank statements showing your usual earnings)

Important: The government has a right to have you examined by one of their physicians before an administrative hearing is held.

How much can I ask for?

You can ask for the amount of your medical bills, out-of-pocket expenses, lost wages, and even an amount for your pain and suffering. You cannot make a claim for punitive damages.

Can my case be settled after I file a claim?

Yes. Anytime before the administrative law judge makes her decision, you and the government can get together and settle your case.

Can I hire an attorney to represent me?

Yes. You can retain a personal injury attorney to represent you. If you do, you won’t have to pay any legal fees until, and unless, you win your claim or lawsuit.

An attorney’s fee for administrative level federal cases is normally 20 percent of the amount awarded in the verdict. If you lose at the administrative level, and go on to federal court, the attorney’s fees are normally 25 percent. Most states have similar fee structures.

You are not required to hire an attorney. But, if your claim is denied at the administrative level, and you decide to file a lawsuit, then you will need legal representation.

Federal and state courts’ rules of procedure can be very complex, and you will be up against well-seasoned government attorneys. Not knowing how to proceed could easily result in your case being dismissed by the judge on technical grounds.

What if the administrative law judge denies my claim?

You should receive a copy of the ALJ’s decision, which will include a brief version of the facts and law she relied upon in making her decision. It also gives you notice of your right to file a Motion for Reconsideration – a written request asking the judge to reverse her decision.

If your motion for reconsideration is denied, your next step is to file a lawsuit. Federal lawsuits must be filed in the federal district where you live, or the district where the injury occurred. State lawsuits must be filed in the county where you live, or the county where the injury occurred.

Case Studies

State Highway Worker Killed
In this wrongful death case, a worker was killed at a state highway construction site. The state believed it was protected from any liability for injuries by the contractor’s liability insurance.

Hit by a Garbage Can
In this case, a man got hit by a garbage can thrown from a sanitation truck. The court rules that sovereign immunity does not apply in this case.

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