Suing the Federal Government, Sovereign Immunity and Negligence

To the consternation of thousands of disgruntled citizens around the United States, the federal government generally cannot be sued. The United States federal government enjoys a legal privilege called sovereign immunity, which means that the federal government cannot be sued. State governments are also protected against most lawsuits under the legal privilege of sovereign immunity.

Federal Tort Claims Act and Negligence 

The United States federal government cannot be sued unless it waives its sovereign immunity legal privilege or otherwise consents to a suit under tort law. The other exception to the government staring down a lawsuit would be if a federal employee shows negligence. Under the Federal Tort Claims Act, the sovereign immunity that the government normally enjoys would be waived to some degree.

If the federal government is said to be a legal party with respect to a contact, the Tucker Act also still applies today. This means that the federal government could waive its sovereign immunity legal privilege if it’s party to a contract, according to the Tucker Act. Having said all that, there are many statutory exceptions to both the Federal Tort Claims Act and the Tucker Act that make filing a lawsuit against the federal government more difficult than it appears at first blush.

For instance, although a light reading of sovereign immunity and patent infringement laws might indicate that you could, in fact, sue the government for patent infringement, that’s not the case. You would only have legal recourse against the federal government via the United States Court of Federal Claims.

There are only a very limited number of instances in which you can legally sue the federal government, and these exceptions are outlined in the Federal Tort Claims Act and Tucker Act. If a federal employee is found to be negligent or if the federal government is party to a contract, then it may waive its sovereign immunity legal privilege and open the door to a lawsuit.

Reasoning Behind the Federal Tort Claims Act 

The idea behind the Federal Tort Claims Act is that if a government employee shows workplace negligence then you should have legal recourse. For instance, if you are the victim of medical malpractice in a Veterans Administration hospital or driving peacefully when an FBI agent slams into your car, you may be entitled to sue the federal government.

If you can prove that a federal institution or government employee’s negligence is responsible for your loss of property, injury or even death, then you may be eligible to sue the federal government under the Federal Tort Claims Act. There are a few technicalities, of course, with respect to the Federal Tort Claims Act’s reach. The negligent government employee has to be on the government payroll and not a private contractor for the Federal Tort Claims Act to apply to your negligence case.

This may sound odd to some readers, but the federal government only waives its sovereign immunity under the Federal Tort Claims Act for acts of negligence rather than acts of misconduct. This means that not only does the federal employee’s negligence need to be within the scope of his or her employment, but the employee showing misconduct has little bearing on the Federal Tort Claims Act.

Logistics of Administrative Claims Process 

There are some conditions that apply to successfully suing the government under the Federal Tort Claims Act. The party suing the government has two years to file his or her claim with the relevant federal agency. Once the agency responds, which can take up to six months, you have six months to file the lawsuit.

What to do When Your Attorney Fails You

Imagine calling your lawyer to find out the status of your legal case only to find out the court dismissed your case without a hearing. You ask more questions and discover that your attorney failed to file your claim within the time required by law. The first question that comes to your mind is, “Can I sue my lawyer?” The answer is “Yes.” 

You can sue your lawyer for legal malpractice, but there are some big hurdles to get over in order for your lawsuit to be successful. There are four elements you must prove in order to prevail. 

Elements of a legal malpractice case.

1) You must prove you actually had an attorney/client relationship. If you only spoke to a lawyer informally at a party and got vague legal advice, that will not count. You must have evidence that you secured the services of the attorney to work on your behalf and obtained legal advice you relied on. 

2) The next step is to prove that your lawyer was negligent, or that he or she acted below the standard of care practiced by other lawyers in your community. Examples of negligence are: 

• Failure to file a complaint within the statute of limitations – or before the legally established time has run out. This presumes you consulted the attorney prior to the running of the statute, but he or she failed to file within the deadline. 

• Missing other court deadlines, resulting in the dismissal of your case. 

• Abandoning you by failing to return your phone calls or answer your letters.

• Failing to comply with court orders. 

• Commingling the attorney’s personal funds with the trust account that contained the money you paid your attorney to work on your case. 

• Settling your case without telling you and keeping the money. 

3) Even if you prove you had an attorney/client relationship, and your lawyer was negligent, you still have to prove that the negligence act was the proximate cause of your injury. This means that the outcome would have been different if the attorney had not been negligent. This is the hardest part. It is often referred to as presenting “a case within a case” since, in order to win your legal malpractice case, you have to prove you would have won the underlying case if the attorney had not been negligent. 

4) Finally, you must prove the amount of money you lost due to the attorney’s negligence. 

Important considerations before pursuing a legal malpractice claim. 

• If you sue your attorney for legal malpractice, you will give up the attorney/client privilege with that attorney. Anything and everything you ever told that lawyer in confidence can now be revealed in court. 

• Just because you lost your case does not mean your attorney was negligent. Even if another attorney would have done better does not mean your attorney was negligent. 

• Errors in judgment do not amount to malpractice. For example, your lawyer may have had a very good reason not to call a certain witness at trial. After the trial is over, hindsight may make it clear that was a poor decision and the witness should have been called to testify. That type of honest belief that the decision was correct at the time does not open the door for a legal malpractice action. 

• If you decide to sue your lawyer, you must do so within the statute of limitations established by the California Code of Civil Procedure. There are some complex aspects to the statute. Consult an experienced legal malpractice attorney for more information.