FILING SUIT UNDER THE FEDERAL TORT CLAIMS ACT

The Federal Tort Claims Act (FTCA) provisions are found at 28 U.S.C. § 1346(b), § 1402(b), § 2401(b) and §§ 2671-2680. The FTCA is law by which the United States has waived its sovereign immunity to permit civil suits against it for actions arising out of negligent acts of agents of the United States. It should be noted that the United States cannot be sued in a tort action unless it is clear that Congress has waived the government’s sovereign immunity and authorized suit under the FTCA. A litigant who wishes to sue the United States in a tort action must do so under the FTCA.

Only the United States may be sued under the FTCA. Other parties whom the claimant wishes to bring into the action may be sued as pendent parties under 28 U.S.C. § 1367, if the claims are related to the primary suit against the United States. An example of this would be in an auto accident wherein the plaintiff was injured due to the negligence of a civilian employee driving a United States government vehicle, the claims against the civilian employee personally, are as a pendent party.

Prior to filing an action under the FTCA an administrative claim must be presented with the federal agency employing the person whose act or omission caused the injury. This is a jurisdictional prerequisite to suit. The claim must include a sum certain amount of damages sought and sufficient information to allow the agency to investigate the merits of the claim. Normally the claim is made on Standard Form 95. This is available from the staff attorneys for the applicable agencies of the United States Attorney’s Office. After the claim is presented with the appropriate agency, that agency has six months to either admit or deny the claim. Once the administrative claim has been denied, or until six months has passed without the agency acting on the claim, a suit can be filed. A claimant may also choose not to present suit after six months has passed. Unless the administrative claim is denied, the six-month statute of limitations does not begin to run and a claimant has an indefinite time within which to present suit.

An action may not be brought for damages greater than the amount of the claim presented with the federal agency. An exception is made when the increased amount is based on newly discovered evidence that was not reasonably discoverable at the time the claim was presented or when there are intervening facts relating to the amount of the claim.

Administrative claims are not required before filing counterclaims and cross-claims under Rule 13 of the Federal Rules of Civil Procedure. Third-party claims must be true third-party claims. Suit must be pending in federal court in order for this provision to be applicable. The administrative claim requirement is inapplicable to true third-party actions, however, the administrative claim requirement applies with full force to free-standing suits seeking indemnity or contribution.

To repeat that which I discuss above, the requirement that a claimant must present an administrative claim and receive a denial or wait for six months to pass before filing suit only applies when suit is filed against the United States. The administrative claim requirements of 28 U.S.C. §2675(a) and the time limitations of 28 U.S.C. § 2401(b) do not apply if a suit is commenced directly against a government employee for actions taken while in the scope of his/her office or employment. The Westfall legislation, passed in 1986, amended 28 U.S.C. § 2679 to allow for the substitution of the United States as a defendant in place of an individual employee sued for actions within the scope of his/her employment. Once the United States is substituted for the individual employee, if the suit is dismissed for failure to present an administrative claim, the claimant will have 60 days after dismissal of the action to present an administrative claim. Thereafter, the claim will be considered timely if it would have been timely if it had been presented on the date the underlying civil action was commenced.

It should be noted that if a copy of a claim is intended to be presented, a separate, signed claim must be received. Similarly, reference in a claim to injuries suffered by other persons does not suffice to amount to a claim on behalf of any person other than the signatory.

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