Defending Government Tort Litigation Considerations for Scholars

Paul F. Figley, American University Washington College of Law


I am honored by the invitation to participate in this symposium on “What Practitioners Can Teach Academics About Tort Litigation” and to share my views from the defense side of government tort litigation. I have a foot in each camp of the practitioner/academic divide. For three decades I defended the federal government in Federal Tort Claims Act (FTCA) litigation, serving for the last 15 of those years as Deputy Director of the FTCA Staff in the Civil Division of the U.S. Department of Justice. I worked with the FTCA and its jurisprudence on a daily basis—litigating cases, assessing and negotiating proposed settlements, advising agencies and Assistant U.S. Attorneys, and commenting on proposed legislation. I left Justice in 2006 to become an academic, a role in which I have had the pleasure of teaching Torts to first year law students and the time and freedom to write about sovereign immunity, the FTCA, and other things.

Tort liability of the federal government is a wonderfully complex area.[1] It ranges from the most ordinary matters—intersection collisions, medical malpractice, and slip and fall cases—to the extraordinary—such as nation-wide vaccine programs,[2] responses to acts of international aggression[3] and terrorism,[4] and the near destruction of small towns,[5] cities,[6] and large metropolitan areas.[7] Scholars attracted to this rich field should bear in mind that litigation against the government falls outside the norm of American tort law. The federal government is so categorically different from other tort defendants that many of the considerations often at play in tort litigation simply do not fit.