The Federal Tort Claims Act of 1946

The United States Legal system subscribes to the common law doctrine that ensures that various situations that may be mirrored in history are treated and accorded the same legal consideration. Common law states that, “…the United States cannot be sued without its consent”, (Wendell). Following this precedent in common law only the United States congress has the power to amend or qualify this sovereign immunity that the United States enjoys as a person created in legal fiction. The move by congress to enact the Federal Tort Claims Act was a significant step in cementing the ideals of democracy that place measures of checking government accountability in the hands of the people. It remains landmark legislation.

The Federal Tort Claims Act is the statute that authorizes individuals to bring suits against the United States. The United States therefore allows suits to be placed on it by individuals. It gives consent as required by common law for suits to be brought against it. These suits are only tort suits and there are a number of exceptions that are not supported by the Federal Tort Claims Act.

The Federal Tort Claims Act was enacted in 1946 and it authorizes the Federal agencies of the government to settle claims brought against the United States government for negligent conduct of its employees during discharge of services within the scope of their duties. The act empowers the federal courts to treat the government like an individual and employ impartiality in these dealings (Johnson, 2010). The government is thus to be treated just like any other litigant in the courts.

The reach of the Federal Tort Claims Act is however restrained. An agency is not liable if the tort is predicated on the agencies omission or action which occurs as a result of certain discretionary activities and measures (Freeman & Minnow, 2009). The act therefore prohibits liability in those cases where a policy decision could have resulted in the tort. These measures are in place to protect the agencies in pursuing their mandates freely since this may and often does involve the taking of various discretionary measures.

The enactment of Tort law has brought about certain aspects of law enforcement agencies under more scrutiny. In this legislation there is a window that can be used to hold law enforcement agencies accountable for their mistakes while in the discharging of duties.

Local government entities and municipalities may be sued for the errant actions of their officers. The increasingly deteriorating relationships between law enforcement officers and urban youths have resulted in many incidents where the security agencies lose their composure and control ending up assaulting individuals during arrests.

These kinds of actions are exposed when individuals seek redress through tort law suits against the federal government or the justice department. Federal tort claims act is thus allowing the aggrieved to alter the landscape that security agencies inhabit much to the chagrin of many security officers (Ferdico, 2008). Security agencies are thus more sensitive to these kinds of claims especially because of the political backlash that they pose for law enforcement officers.

Legal action against the United States government by military officers or their kin has led to new light being shed on the implications of the tort law. The activities of said military servicemen are wide and varied. Furthermore these activities see them travel to a great many destinations of which they have little control. What then would be said of the Feres doctrine which emerged when the State was sued for injuries sustained during discharge of duties by a soldier? The court moved to disclaim the suit and found no basis to award the claim against the government since the relationship between military personnel and the government is federal.

The Federal Tort Claims Act is charged with treating the United States government as an individual. In using this analogy it therefore emerges that in no way can tort be brought to an individual for the injury of service men in action since such a circumstance cannot exist with individuals since they have no use or possession of private armies under law. In much the same way the application of tort by a military service man is therefore void under the feres doctrine established in common law after Feres vs. Unites States (Cohen & Burrows, 2007). Even more critical is the fact that the Federal Tort Claims Act makes, “the law of the place where the act or omission occurred govern liability”.

In looking at the conduct of military servicemen we see the absurd application of local law in their tort claims since they routinely serve in many locations abroad. United States government cannot be subject to the law of a foreign land. This means the concept of local justice as regards tort cannot be applied for a soldier.

The application of Federal tort by soldiers and security agencies is therefore void in many cases though not all of them. Furthermore there are provisions within security agencies of compensation to injured and retired service men. This compensation is carried out without meting out liability to the federal agency and is generous to the say the least. In this way the Veterans benefits act becomes a substitute for tort liability (Cohen & Burrows, 2007).

The implications of the Federal Tort Claims Act are far reaching and cannot be taken lightly. Each case must be looked at individually and certain considerations must be taken. Take for instance the United States vs. Shearer case (as cited in Cohen & Burrows, 2007) where negligent orders by superior officer result in the injury of a service man. In this case there seems to be clear grounds for the tort to warrant a rightful claim yet the implications on the functions and authority structure of the armed forces would be immensely injurious. Certainly they would bring more harm to the general condition of the army than was meted out to a soldier on the back of negligent order from his superior. The enactment of tort therefore has created complex legal landscapes which must be navigated with tact for their implications under the doctrine of common law can be far reaching than might seem to the uninformed.

The application of the act with regard to security agencies therefore has immediate concerns on their functioning and discipline. What would be the result in the order amongst military ranks were judgments that undermined the legitimacy of military authority to be meted out on army officers? Certainly nothing pleasant would emerge from this. Further it is doubtful that congress enacted the act for civilian courts to ‘second guess’ military decisions.

The relationship between military personnel and the government is inherently federal in nature and a statutory compensation benefits scheme is already in place to assist personnel in distress as a result of performing their tasks in service.  There is little need to extend the federal tort claims act to the conduct of military personnel as can be seen by the many cases where adherence to the feres doctrine has been upheld. The concept of local justice where local law is considered in matters of tort is also out of place in military contexts.

The federal tort claims act therefore has its spirit in the rectification of misrules by the courts that do occur in cases where a ruling is made on information that is not factual. It enables redress by the citizens, a crucial mechanism if the spirit of giving justice is to be upheld by the federal justice system. It is a mark of the egalitarian principles that government is founded upon in the United States and shows that even the state is not above the law and can be found liable to claims in the event of negligent actions of its employees.


Ferdico, N. J., Fradella, F. H., Totten, D. C. (2008). Criminal Procedure for the Criminal Justice Professional. Cengage Learning.

Wendell, O. H. (n.d.). The Common Law.

Cohen, H., Burrow, K. V. (2007).Federal Tort Claims Act. Congressional Research Service. <>

Johnson, L. K. (2010). The Oxford Handbook of National Security Intelligence. Oxford University Press US.

Freeman, J., Minnow, M. (2009). Government by contract: outsourcing and American democracy. Harvard University Press.

Michaels, W. C. (2002). No greater threat: America after September 11 and the rise of a national security state. Algora Publishing.