Federal Tort Claims Act Cases in Nevada
by Troy Flake
A plane crashes into an iconic Manhattan skyscraper. Lives are lost. Congress is spurred into passing major legislation in response. Sound familiar?
But this was not September 11, 2001, at the World Trade Center. Rather, on July 28, 1945, a B-25 bomber pilot wandered off course and slammed the plane into the 78th floor of the Empire State Building. Tragically, 14 people were killed.
At that time, victims and their families could not sue the government for a pilot’s negligence. The common-law doctrine of sovereign immunity—”the King can do no wrong”—barred such suits. Their only recourse was to petition Congress for a private bill, a cumbersome process ill-suited to an expanding federal government.
Was it fair to require an act of Congress every time the federal government caused an injury? As federal operations expanded—and in the wake of the Empire State Building crash—Congress enacted the Federal Tort Claims Act of 1946 (FTCA), limiting sovereign immunity in defined circumstances.[1]
Common FTCA cases include Postal Service motor-vehicle crashes, VA or military medical malpractice, and premises liability. The FTCA also allows suits for certain law-enforcement torts.[2]
But the Act is strictly construed. Claims face exacting, sometimes confusing administrative requirements and deadlines, and certain discretionary, policy-based activities are fully shielded.
For even garden-variety claims, suing the federal government for a tort is challenging and there are many traps for the unwary. Still, these cases can be rewarding and serve the important role of holding our federal government accountable.
Here are practical tips for litigating these unique cases.
Check Your Retainer Agreement
A new client walks into your office asking you to represent them in a motor vehicle crash. Liability is clear. The client is injured. By the way, the client tells you, the other driver was the mailman. You hand them your standard retainer—33%, 40%, 50%—and they sign it. Did you know that you may have just committed a federal crime?
The FTCA makes it a criminal offense to even request attorney’s fees of more than 20% of any settlement before filing suit and 25% after filing or judgment.[3] Violating this provision could land you in jail for up to a year. Make sure you use an FTCA specific retainer that incorporates the statutory fees.
These fee caps disincentivize FTCA suits. Cases that might make sense in other contexts can be financially difficult to litigate under the FTCA, especially given some of the other potential limitations and complexities.
Prepare for Exhaustion
You’ve heard, “Don’t make a federal case out of it.” With the FTCA, you’ll see why. Do not expect a speedy resolution.
The pre-litigation phase of the FTCA is very different from the typical insurance demand process. If you miss a step here, it can delay or even derail your entire case. Claimants must present a claim (usually on a form SF-95) to the agency whose employee was involved in the incident.[4]
Although not strictly required, it is good practice to include a cover letter and supporting documentation and medical records, and to supplement if treatment is ongoing. Always get confirmation from the agency that it received your SF-95.
Once you submit the administrative claim, you must then wait either until the agency denies the claim, or until six months have passed, before filing your complaint. If you file before that, your claim will be dismissed. In practice, many agencies request additional time to investigate the claim; others simply do not provide a final determination. Agencies rarely settle larger claims during the administrative phase. While most agency staff who handle these claims are professional, insurance claims processing principles do not apply.
Once the case is filed, the government has an extended deadline to answer the complaint. The government usually does not settle FTCA cases until discovery is complete and dispositive motions are decided. Getting a trial date in federal court can take significant time. You and your client will learn why people say “don’t make a federal case out of it.”
Be Certain About the Sum Certain
As an Assistant U.S. Attorney defending FTCA cases, the first document I looked at was the SF-95 form that listed the total amount demanded. If I saw phrases like “policy limits” or “amount to be determined at trial,” I knew I was about to make a phone call that would wreck someone’s day. The FTCA requires a numerical “sum certain.”[5] Once the case is filed, you cannot cure a defective sum certain, and recovery is barred.
The amount you demand in the administrative phase is the maximum you can recover at trial, absent newly discovered evidence or intervening facts. Demanding policy limits or “TBD” won’t do. Phrases like “in excess of $50,000” or “at least $25,000” can be rejected for uncertainty, although many courts strike the surplus language and treat the stated dollar amount as the sum certain.
So should you demand ten billion dollars in every case just to be safe? You can, but agencies use the sum certain number to evaluate the claims. Pick an aspirational, but logical number and you will have no issues.
Name the Proper Party
The FTCA can apply in unexpected contexts. An example: a group of off-duty military personnel are partying on the Strip. Wisely determining that they are too drunk to drive, they call their sleeping sergeant to give them a ride home in a privately owned vehicle. On the way, the sergeant is involved in an accident. The plaintiff’s attorney, unaware that the driver is in the military, files a lawsuit naming him in state court.
On the eve of trial, the government learns of the suit and determines the sergeant acted within the scope of employment. The case is removed, the United States is substituted, and the action is dismissed for failure to exhaust—forcing the plaintiff to start over with the administrative claims process.[6]
If you suspect that the FTCA may apply, you should use the administrative claims process. Course and scope determinations look to state law, but the government often takes an expansive view.
When you file, name only the United States, since it is the only proper defendant in an FTCA case. Litigants sometimes improperly name the involved agency or the federal employee. While not usually fatal to the claim, it can tip the defense off that your lack of familiarity with the FTCA.

Independent Contractors Under the FTCA
Which of these is an FTCA case:
• A volunteer with a veterans’ organization is driving a patient to a medical appointment at the VA and causes an accident, injuring the patient.
• That same patient is getting medical care at the VA when a contract physician working at the VA hospital commits malpractice.
The federal government relies heavily on contractors, but the FTCA covers only “employees.”[7] Recovery for contractor conduct is possible only if the government so controls the detailed physical performance that the person functions as a federal employee. Courts often treat contract physicians as independent professionals.
Volunteers and certain non-federal actors can be deemed federal employees for FTCA purposes (e.g., some VA volunteer transportation roles[8]). Confirm the actor’s status and relationship to the government before proceeding.
Prepare for a Bench Trial
FTCA claimants are not entitled to a jury.[9] When it’s time for trial, communicate with the court; judges usually conduct bench trials very differently from jury trials. If there is a non-federal co-defendant, you may end up in the unusual situation of trying a case to a judge as to one defendant and a jury as to the other.
Consider consenting to trial before a federal magistrate judge. In the District of Nevada, a certain number federal cases are automatically assigned to the magistrate judges.[10] Either party can opt out and request that the case be heard by a district court judge. If your case is assigned to a district court judge, you can consent to trial by the magistrate judges. Because they do not hear felony criminal cases, magistrate judges can often hear cases sooner and make more firm trial settings. It is a good option to speed cases along.
Nevada’s Substantive Law Applies
The FTCA does not create any cause of action. Instead, under the FTCA, the United States is liable, “in the same manner and to the same extent as a private individual under like circumstances” under state law.[11] This means that Nevada’s tort law applies in FTCA cases, including substantive limitations on liability, such as the medical malpractice cap. Nevada procedural rules such as statutes of limitations do not apply.
Nevada’s limitations on suing state and local governmental actors do not apply because the United States’ liability is the same as that of a “private individual,” not a state or municipal actor.
The Discretionary Function Exception
In 2010, park rangers at Olympic National Park were repeatedly told by park visitors that a rogue mountain goat was accosting hikers on a popular park trail. The rangers failed to act to remove the animal. Unfortunately, the goat gored a hiker to death. That sounds like a pretty good case for the plaintiff, right?
One of the most challenging—perhaps frustrating—defenses available to the government in FTCA cases arises from the discretionary function exception, which precludes recovery “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty … whether or not the discretion involved be abused.”[12]
In the goat case, the government argued that the rangers exercised discretion in failing to remove the goat, and that their inaction was a protected policy decision. The Ninth Circuit agreed and the claim was barred.[13]
The exception rests on separation-of-powers principles and prevents courts from second-guessing executive policy through tort suits. Discretionary, policy-driven conduct is shielded, but application is fact-specific and often litigated.
Routine activities like driving, providing medical care, and maintaining premises generally fall outside the exception. For complex fact patterns, analyze the defense early.
The government is assertive about the discretionary function defense. When your case may involve the discretionary function exception, carefully review agency regulations, policies, and other materials to show that agency officials did not have discretion to engage in the tortious conduct, and that it was not the result of a policy choice. Jurisdictional discovery may be necessary.
Conclusion
FTCA cases can be challenging, but they reward careful lawyering, ensure that the government is held accountable for injuries, and provide justice for tort victims.