Page 14: of Maritime Reporter Magazine (November 2022)

Legal Beat

FTCA

Recent judicial decisions and particularly the decision

The Federal Torts Claims Act (FTCA) provides a limited of the United States Supreme Court in Westfall v. Erwin, waiver of sovereign immunity and allows private persons have seriously eroded the common law tort immunity pre- to sue the federal government in federal court for most torts viously available to Federal employees.

committed by persons (federal employees) acting on behalf of the United States. Among the exemptions are claims arising

The erosion of immunity of Federal employees from com- from assault, battery, false imprisonment, false arrest, mali- mon law tort liability has created an immediate crisis cious prosecution, abuse of process, libel, slander, misrepre- involving the prospect of personal liability and the threat sentation, deceit, or interference with contract rights. of protracted personal tort litigation for the entire Fed-

The FTCA only authorizes tort lawsuits against the United eral workforce.

States itself; it expressly shields individual federal employees from personal liability for torts that they commit within the

The prospect of such liability will seriously undermine scope of their employment. In other words, the FTCA makes the morale and well-being of Federal employees, impede the remedy against the United States under the FTCA exclu- the availability of agencies to carry out their missions, sive of any other civil action or proceeding for money dam- and diminish the vitality of the Federal Tort Claims Act as ages that might otherwise be available against the employee the proper remedy for Federal employee torts.

whose act or omission gave rise to the claim. Congress prohib- ited courts from holding federal employees personally liable

Congress further stated: for torts committed within the scope of their employment in order to avert what Congress perceived as an immediate crisis

It is the purpose of this Act to protect Federal employees involving the prospect of personal liability and the threat of from personal liability for common law torts committed protracted personal tort litigation for the entire Federal work- within the scope of their employment, while providing per- force. The individual employee generally remains immune sons injured by the common law torts of Federal employ- from tort liability for torts committed within the scope of his ees with appropriate remedy against the United States.

or her employment even if a provision of the FTCA foreclos- es the plaintiff from recovering monetary damages from the

The common law tort immunity provided to federal em-

United States itself.

Gradually, several court decisions found exceptions to the ployees by the FTCA has not been subsequently challenged.

broad immunity afforded federal employees by the FTCA.

The ? rst signi? cant exception was with regard to federal em- ployees utilizing private vehicles on government business. In OPA 90

One of the purposes of OPA 90 was to ensure prompt re- 1961, Congress responded by enacting the Federal Drivers

Act, which granted speci? c immunity to federal employees sponses to discharges or the substantial threat of discharge of oil or hazardous substances. To that end, Congress requires for any damage to property or for personal injury, includ- ing death, resulting from the operation by any employee of owners and operators of covered vessels and marine transpor- the government of any motor vehicle while acting within the tation-related shoreside facilities to contract in advance for the provision of such service.

scope of his of? ce or employment.

The legislation also provides responders immunity for in-

Then the Supreme Court issued its decision in the case of Westfall v United States, holding that the FTCA, as then jury and damages resulting from actions taken or omitted to be taken in accordance with the National Contingency Plan or worded, applied only to discretionary acts of federal employ- ees. Congress responded by enacting the Federal Employees otherwise directed by the President (who has delegated such

Liability Reform and Tort Compensation Act of 1988, better authority to the FOSC.

For the same reasons that Congress found it important known as the Westfall Act. That legislation replaced the Fed- to grant personal immunity to federal employees for torts eral Drivers Act and amended the FTCA to override the Su- preme Court decision and make it abundantly clear that tort committed within the scope of their employment, immunity immunity was provided across the board to federal employees should be granted in the same manner to responders for torts acting within the scope of their employment. Interestingly, in committed in the course of rendering care, assistance, or ad- vice consistent with the National Contingency Plan or as oth- the uncodi? ed ? ndings and purposes portion of the legisla- erwise directed by the President relating to a discharge or the tion, Congress stated: 14 Maritime Reporter & Engineering News • November 2022

MR #11 (1-17).indd 14 11/3/2022 9:31:23 AM