Trial Attorney Blog
We have handled many federal tort claims on behalf of clients over the years but, nonetheless, it is always helpful to have an Abbreviated Federal Tort Claims Act Checklist to make sure that we are in compliance with the law. Those who have never handled a case against the United States government may find some of the procedural requirements burdensome and difficult to navigate. Nonetheless, once a checklist is developed, the procedure is actually fairly easy to follow but and this is an important but, it must be followed correctly. Here are some of the items on our list:
1) The Federal Torts Claims Act is found at 28 U.S.C.§ 1346(b) and 2671 through 2680. As all practitioners know, a detailed Ante Litem Notice must be filed with the federal agency within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). An Ante Litem Notice is typically filed via a standard Form 95 which is found at 28 C.F.R. part 14. While each agency has their own standard Form 95, the Department of Justice standard Form 95 is that which is most easy to use and which provides all the of the requirements of a satisfactory Ante Litem Notice.
2) Typically, when one submits the Notice of Claim Form 95 to the appropriate federal agency, the basis of the claim is stated (which is the date the incident occurred, the description of the claimed negligent act, the type of injury suffered and the parties involved). One must describe in detail the nature and extent of the damages and the amount being claimed. It is important that you claim all the monetary damages you seek on this form because the law provides that if the case is not resolved via an administrative review that you cannot sue for more than you claim in your form.
3) Another important feature of Federal Tort Claims Act cases is that a separate form must be filled out for each damaged claimant. For example, if a husband and wife are injured one cannot file a single for both but must file separate forms. If there are derivative claims such as an estate’s claim when a wrongful death is involved or a loss of consortium claim the practitioner or claimant should file separate claim forms because the Federal Tort Claims Act applies to each separate claim. See 28 C.F.R. § 14.3(b).
4) Once a claim is filed with the appropriate federal agency, the claimant must wait for six months or denial whichever is earlier before suit can be filed. See 28 U.S.C. § 2675(a). If the claim is denied or six months expires without any action by the federal agency, suit must be filed where the plaintiff resides or where the act or omission complained of occurred. See 28 U.S.C. § 1402(b). Once suit is filed, only the United States of America may be named as a defendant, not the agency and not the negligent employee.
5) The statute of limitations for Federal Torts Claims Act is found at 28 U.S.C. § 2401(b). It basically provides that the statute expires two years after a claim accrues unless action is brought within six months after the date of mailing of a final denial of a claim. In short, if an agency does not act on a claim that is timely submitted, the statute is tolled until the agency issues its final ruling.
6) Many practitioners do not realize that there is no right to a jury trial in a Federal Tort Claims Act case. 28 U.S.C. § 2402 provides that a United States District Court shall sit as the judge of the facts and the law. Damages in a particular case are to be governed by the law of the place where the act or omission occurred and are limited to compensatory damages only.
7) Many lawyers do not like these cases because compensation is limited. Attorney’s fees are limited to 20% if the case is settled without the necessity of a lawsuit and 25% if the case is settled or judgment obtained thereafter. These fees are less than workers’ compensation fees and are hardly enough to pay counsel in any complicated federal case. Nonetheless, this is what the law allows. While costs can be assessed against the United States under the Federal Torts Claim Act just as against a private litigant, such costs do not include attorney’s and expert witness fees but typically only include limited deposition costs, filing and witness fees, etc. The United States is not liable for pre-judgment interest but may be liable for post-judgment interest. See 28 U.S.C. § 2674, 1961.
8) If a person is injured by the negligence of a federal employee such as a postal employee that runs a stop sign, the injured claimant would be well advised to contact counsel as soon as possible to make sure that a timely Ante Litem Notice is provided with the correct information required by the standard Form 95. Counsel usually can best assemble the information that is needed by the federal agency to review the claim to see if the agency will acknowledge its liability for the damages and agree to a settlement. If such a settlement cannot be achieved, then the claimant in consultation with their attorney has a right after six months of claim submission to initiate litigation in the United States District Court where the act or omission occurred or where the plaintiff lives. If such a case goes forward, typically, United States District Court judges who must sit as the trier of fact and law require that proposed Findings of Fact and Conclusions of Law Order be presented for their review at time of trial. Again, only experienced counsel in this area typically can prepare all the documents necessary to protect a claimant’s rights in the context of a federal tort claim.
Having handled these cases over the years against a variety of federal agencies, again, our experience has indicated that these claims can be handled efficiently and effectively on behalf of those who have legitimate tort claims for damages against the federal government. Nonetheless, if counsel is not experienced in this area and/or claimants represent themselves, there are some potential “land mines” that could sabotage an otherwise legitimate claim. As is true of any legal undertaking, caution is advised when proceeding in unfamiliar territory.