Tort Claims Against the United States
Bringing suit against the government implicates rules and procedures not applicable to the usual private-party tort case. The following is the conclusion to a three-part series summarizing the various specialized process for bringing a negligence claim against local, state, and federal governmental entities. The following article addresses filing a tort claim against the United States. Please note, however, that any immunity issue is beyond the scope of this writing.
Pre-Suit Notice
Pursuant to the Federal Tort Claim Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., “a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues[.]” 28 U.S.C. § 2401(b). The FTCA’s time limitation is not jurisdictional and thus is subject to equitable tolling. See United States v. Kwai Fun Wong, 575 U.S. 402 (2015).
Prior to filing a lawsuit, “the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). If the agency fails to make a final determination within six months of the claimant’s filing, then the claimant may consider the claim denied. See id. (“The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.”) (emphasis added).
Notably, the emphasized statutory text means that the claimant can choose to deem the administrative claim denied after 6 months without a response so that suit can be filed; but the claimant is also free to wait as long as desired, provided that the agency does not issue a denial. See Conn v. United States, 867 F.2d 916, 920 (6th Cir. 1989) (“the six-month period within which the action must be filed is simply tolled so long as the claim is not finally denied”); e.g., id. (error to dismiss claim filed 6 years after the alleged injury where agency never denied administrative claim); see also Taumby v. United States, 919 F.2d 69, 70 (8th Cir. 1990) (“[T]he government . . . concedes that there is no time limit for the filing of an FTCA action when an administrative claim is deemed to be denied under 28 U.S.C. § 2675(a) . . . by virtue of an agency’s failure to finally dispose of the claim within six months.”). Therefore, “[a]s long as a claimant files an administrative claim within two years of its accrual and the agency does not send notice of final denial, the claimant may wait indefinitely before filing suit.” Pascale v. United States, 998 F.2d 186, 192-93 (10th Cir. 1993) (emphasis added).
The “appropriate federal agency” means “the Federal agency whose activities gave rise to the claim.” 28 C.F.R. § 14.2(b)(1). The supplemental regulations within each federal agency should provide the necessary details to properly serve an administrative claim under the FTCA. See 28 C.F.R. § 14.11 (“Each agency is authorized to issue regulations and establish procedures consistent with the regulations in this part.”); e.g., 39 C.F.R. § 912.4 (Postal Service); 14 C.F.R. § 1261.304 (NASA).
“When a claim is presented to any other Federal agency, that agency shall transfer it forthwith to the appropriate agency, if the proper agency can be identified from the claim, and advise the claimant of the transfer. If transfer is not feasible the claim shall be returned to the claimant.” 28 C.F.R. § 14.2(b)(1). Significantly, “[a] claim shall be presented as required by 28 U.S.C. 2401(b) as of the date it is received by the appropriate agency.” Id. (emphasis added).
Standard Form 95 (SF95) is a federal claim form that is typically used to present claims against the United States under the FTCA, but “other written notification” could suffice, 28 C.F.R. § 14.2(a), provided that such notice “(1) is sufficient to enable the agency to investigate and (2) places a sum certain value on her claim.” Ahmed v. United States, 30 F.3d 514, 516-17 (4th Cir. 1994) (internal quotation marks omitted).
A copy of SF95 is available from the website of the U.S. Department of Justice. See https://www.justice. gov/civil/documents-and-forms-0. SF95 essentially just seeks the basic who, when, where, how, and what of the incident. See id. Among other things, the SF95 requires the claimant to specify a “sum certain” dollar figure the claimant seeks from the United States as compensation. See id
Regarding the “sum certain,” absent newly discovered evidence, the dollar figure stated in the SF95 is the most you can ask for in any subsequent lawsuit. See 28 U.S.C. § 2675(b) (“Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.”).
Although the claimant’s “duly authorized agent or legal representative” may sign the SF95 or other written notice, in that event the notice must be “accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.” 28 C.F.R. § 14.2(a). Thus, in a wrongful death case or when the claimant is a minor, the notice must include a copy of the document evidencing the agent’s authority to act on behalf of the estate or the minor.
The SF95 may be amended by a signed writing but any such amendment restarts the 6-month period for the agency to make a final determination, and thus delaying/extending the time within which the claimant must file suit. See 28 C.F.R. § 14.2(c). Depending on the client’s circumstances, this could be a good thing or a bad thing.
Service of Process
You must file suit “within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency[.]” 28 U.S.C. § 2401(b). Beware that the 6-month period is measured from the date of mailing by the agency, not the date of receipt of the agency’s denial. See id.
As previously noted, however, the FTCA’s time limitation is not jurisdictional and thus is subject to equitable tolling. See United States v. Kwai Fun Wong, 575 U.S. 402 (2015). Further, if the agency never denies the claimant’s administrative claim, then the time for filing suit is tolled until the claimant decides to “deem” the administrative claim denied. See supra Conn v. United States, 867 F.2d 916, 920 (6th Cir. 1989); Taumby v. United States, 919 F.2d 69, 70 (8th Cir. 1990); Pascale v. United States, 998 F.2d 186, 192- 93 (10th Cir. 1993).
To effect service of process upon the United States, you must:
(A) (i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office; [ and]
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
Fed. R. Civ. P. 4(i)(1) (emphasis added).
Miscellaneous
The FTCA is the claimant’s exclusive remedy for all common law tort claims against the United States. 28 U.S.C. § 2679(b)(1). The federal district courts have exclusive jurisdiction over all FTCA cases. 28 U.S.C. § 1346(b)(1). FTCA cases must “be tried by the court without a jury.” 28 U.S.C. § 2402. The United States cannot be liable for pre-judgment interest or punitive damages. 28 U.S.C. § 2674. The claimant’s attorney’s fee is capped at 20% if settled administratively and 25% if suit is filed. 28 U.S.C. § 2678.
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