The Air Force did agree, however, to reimburse a local government in Colorado for the cost of a filtration system installed to protect potable water supplies from PFAS contamination caused by the use of AFFF at the Peterson Air Force Base.Given the difficulties in pursuing remedial and reimbursement claims against the military for contaminating water sources, an investor-owned utility has taken a different tact. In California-American Water Co. v. United States of America, a water company brought a claim for damages under the Federal Tort Claims Act (28 U.S.C. Sections 2671-2680) seeking reimbursement from the federal government for the cost of installing a treatment system to clean-up a drinking water well that the Air Force is alleged to have contaminated from its use of AFFF in the 1970s and 1980s at the Mather Air Force Base (E.D. Calif. January 2020). The case has been transferred to the District of South Carolina “for coordinated or consolidated pretrial proceedings” with other AFFF litigation.

Of course, the Federal government will not consent to, for example, being sued in the Superior Court of California, County of Santa Clara, under the laws of the State of California. But the Government may be subject to state law torts claims under the Federal Torts Claims Act, 28U.S.C. §§ 2671 et seq. To address this, GSA specifies, “This agreement is governed by Federal law,” it deletes “Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law,” and it deletes any language specifying state, territory, district, or foreign law “except where Federal law expressly provides for the application of such laws.”

This exemption also applies to any person to the extent regulated by a state securities commission as a broker-dealer or investment adviser. A person regulated by the Commodity Futures Trading Commission (CFTC) or any person with respect to any account, contract, agreement, or transaction to the extent subject to the jurisdiction of the CFTC.6 Federal government agencies as defined in the Federal Tort Claims Act (28 U.S.C. § 2671), and any state, tribe, or other person to the extent the person qualifies as an arm of the state or tribe within the meaning of federal law concerning sovereign immunity and the person’s immunities have not been abrogated by the U.S. Congress. Any person in relation to any covered product or service that the person and any affiliates collectively provide to no more than 25 consumers in the current calendar year, and that it and any affiliates have not provided to more than 25 consumers in the preceding calendar year.

Congress granted such a waiver when it enacted The Federal Tort Claims Act (“FTCA”). See 28 U.S.C. §§ 2671-2680. Under the FTCA, the federal government may be sued for a tort committed by a federal government employee while acting in his or her capacity as such.

Baires, 2010 WL 3515749, at *7. Baires and Miranda separately sued the United States government for tort liability under the Federal Tort Claims Act, 28 U.S.C. § 2671. “The law is clear that the United States is not liable under the FTCA for torts committed by independent contractors. However, where a third party acts as the agent of a Federal Agency, the Government can be held liable under the FTCA.

The government moved to strike the jury demand and requested that a jury not be involved in any manner in determining its liability. The federal government argued that, because the plaintiffs have filed claims under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680 and 28 U.S.C. § 1346(b), the use of any jury is precluded under 28 U.S.C. § 2402 which states that “[a]ny action against the United States under section 1346 shall be tried by the court without a jury. . .” The Plaintiffs’ Steering Committee (“PSC”) and the nongovernmental defendants both opposed the motion.