More than 500 years ago in England, the Magna Carta was developed after the citizens of England decided they did not want the King making all the decisions. Nor did they want to have the King’s henchmen make the decisions. Thus was born the concept of trial by jury (criminal or civil).
Now here we are a half a millennia later, and in the United States if we choose to sue the Government (the King) for an injury caused by the government, here is what happens. First, one needs to file a document with the appropriate administrative agency that caused the harm by filing a claim with that Agency via the Federal Tort Claims Act. That Act provides that once you file your claim, you can do nothing for 6 months. At the end of that 6-month period of time, the Government also has to do nothing. If the government chooses to pay – a rarity – or decides to reject a claim, you may then file a lawsuit. But if they do nothing (as is common) you must wait 6 months, at which point you are then eligible to file a lawsuit against the government.
So what happens when you sue the government? First, one must have the correct agency. If, for example, medical malpractice occurred at a government hospital, you must sue the United States Government and serve the appropriate agency. Once the lawsuit is filed, the government is given more time to respond than anyone else. But when they do answer, they are represented by… the United States’ attorneys. So at this point, you are suing the United States Government, which is represented by the United States’ attorneys.
That would seem to be acceptable, especially in light of the Magna Carta – knowing that we are going to get a trial by a jury of our peers. Except you are not going to get a trial by a jury of your peers, because our government has legislated that citizens do not get a trial by jury of when suing the government. Instead, the trier of facts is a federal judge.
Imagine being hurt by a negligent health care provider at a government hospital and you just want to be made whole through a lawsuit. Not only do you have to file a claim with the federal government, then you have to file a lawsuit against the federal government, which will be defended by government lawyers (paid for by your taxes) and decided by a federal government judge (also paid by your taxes). That is like suing General Motors with the president of General Motors serving as judge and jury.
There are no exceptions: this is the process that has to be followed.
If you lose, do you believe you will receive justice? If you win less than you believe is appropriate, will you believe you received justice? How can you ever feel like you had justice when your case has been decided by an employee of the party you sued?
Perhaps the time has come where as citizens we should finally get those rights against our Government that the British fought so hard for and achieved more than 500 years ago.