THE FEDERAL TORT CLAIMS ACT 7-29-08 ds

1 The FEDERAL tort CLAIMS act 7-29-08 ds Page 1 of 33 2008 by joseph p. griffith, jr. 843-225-5563 THE BASICS OF THE FEDERAL tort CLAIMS ACT ( FTCA ) Joseph P. Griffith, Jr. Joe Griffith Law Firm, LLC Seven State Street Charleston, SC 29401 (843) 225-5563 (tel) (843) 722-6354 (fax) I. INTRODUCTION. A. STATUTES OF THE FTCA. 1. 28 1346(b). 2. 28 1402(b). 3. 28 2401(b). 4. 28 2402. 5. 28 2671-2680. B. REGULATIONS OF THE FTCA. 1. 28 - (DOJ s regulations). 2. Most agencies have their own FTCA regulations, , 32 Part 536 (Department of the Army), but the Attorney General s regulations prevail if there is a conflict. C. CAVEAT. 1. This outline is not exhaustive. 2. There may be contrary or minority caselaw holdings on any given point.

2 3. Top reference sources are Lester S. Jayson s Handling FEDERAL tort CLAIMS : Administrative and Judicial Remedies (1987) and recent ABA publication. D. BACKGROUND OF THE FTCA. 1. Before 1946 the United States was immune from negligence suits per sovereign immunity. 2. FTCA provided a remedy for parties injured by government employee negligence. the FEDERAL tort CLAIMS act 7-29-08 ds Page 2 of 33 2008 by joseph p. griffith, jr. 843-225-5563 3. Congress wished to avoid the burden of passing private relief bills for injured citizens. E. SOME HIGHLIGHTS OF THE FTCA. 1. Attorney fees are limited to 20% of an administrative settlement and 25% of a judgment or compromise settlement after suit is filed. It s a FEDERAL crime to charge, demand, receive or collect more than the specified amounts.

3 28 2678 (not more than one year imprisonment or $2,000 fine or both). 2. The FTCA authorizes recovery for personal injury, death, or property damage caused by negligent FEDERAL government employees acting within the scope of their FEDERAL employment. 28 1346(b). 3. Government liability is determined by the law of the state where the act or omission occurred. 28 1346(b); Richards v. United States, 369 1 (1962). The Government's liability is "in the same manner and to the same extent as a private individual under like circumstances .." 28 2674. 4. The waiver of sovereign immunity is limited and must be strictly construed in favor of continuing immunity. Congress and the courts have carved out exceptions and limitations to the government s liability.

4 28 2680; Feres v. United States, 340 135 (1950). 5. Negligence CLAIMS are allowed, but generally not intentional torts or strict liability CLAIMS . 28 2680. 6. The FTCA is the exclusive money damages remedy for negligent acts or omissions of FEDERAL government employees acting within the scope of their FEDERAL employment. 28 2679. 7. Punitive damages are precluded. 28 2674. 8. Prejudgment interest damages are precluded. 28 2674. 9. Non-jury trial before a District Court judge only. 28 2402. 10. District Court has exclusive jurisdiction to hear FTCA CLAIMS . Wood v. United States, 961 F2d 195, 197 (Fed. Cir. 1992). 11. Claimant must present an administrative tort claim to the appropriate government agency for adjudication before filing suit in FEDERAL court.

5 28 2675(a). 12. FTCA plaintiff cannot demand or recover in FEDERAL court an amount greater than that submitted in the administrative tort claim without proof of newly discovered evidence or intervening facts relating to the amount of the claim . 28 2675(b). 13. FTCA statute of limitations requires claim be presented to the appropriate government agency within two years of accrual. 28 2401(b). 14. Claimant must file a FEDERAL court complaint within six months of the agency's denial of the administrative tort claim , or can file a FEDERAL court complaint anytime six months after presenting the claim if no agency action has been taken. 28 2401(b). the FEDERAL tort CLAIMS act 7-29-08 ds Page 3 of 33 2008 by joseph p. griffith, jr.

6 843-225-5563 15. Venue is only authorized in the district where the plaintiff resides or where the act or omission occurred. 28 1402(b). II. FTCA ADMINISTRATIVE tort claim REQUIREMENTS. A. EXHAUSTION OF ADMINISTRATIVE REMEDIES IS REQUIRED. 1. The administrative remedies set forth in the FTCA scheme must be exhausted prior to filing suit. Exhaustion of FTCA administrative remedies is a jurisdictional requirement. A FEDERAL court complaint will be dismissed for lack of subject matter jurisdiction if the claimant has failed to exhaust his administrative remedies. Benston v. Evans, 2006 WL 487837 (4th Cir.(Md.)); Plyler v. United States, 900 41 (4th Cir. 1990); Henderson v. United States, 785 121, 123 (4th Cir.)

7 1986); McNeil v. United States, 508 106, 112 (1993). B. WRITTEN NOTICE IS REQUIRED. 1. Written notice of the administrative tort claim must be presented to the appropriate government agency. 28 2675(a). The standard method of notice is by the government s Standard Form 95 ( SF-95 ), but any writing which contains the required elements of notice to the agency will suffice. The written claim must provide the agency sufficient notice so that it can conduct a proper investigation to determine liability, conduct settlement negotiations and assign value to the claim . State Farm v. United States, 2004 WL 1638175 ( ); McNeil v. United States, 508 106, 112 (1993). 2. The claimant does not have to state a cause of action in the administrative tort claim .

8 Rise v. United States, 630 1068 (5th Cir. 1980). However, a claimant s suit may be brought only on those facts and theories of liability raised in the administrative claim . Williams v. United States, 932 357 ( 1996) (claimant cannot present one claim to the agency and then maintain suit on the basis of a different set of facts ); Bembenista v. United States, 866 493 ( Cir. 1989) (where only a sexual assault claim alleged in the SF-95s, failure to include allegations of medical malpractice therein bars an FTCA claim of medical malpractice); Burchfield v. United States, 168 1252 (11th Cir. 1999); Bush v. United States, 703 491, 495 (11th Cir. 1983) (failure to allege lack of informed consent in administrative claim bars the theory for FTCA recovery); contra, Frantz v.

9 United States, 29 222 (5th Cir. 1994) (administrative claim alleging medical negligence was sufficient notice of lack of informed consent claim even though not specifically stated therein). 3. Claimants with derivative CLAIMS must file an administrative claim separate from the underlying primary claim . Aziz ex re. Azizi v. United States, 338 1057 ( 2004) (loss of consortium CLAIMS barred for failure to exhaust); Manko v. United States, 830 831 (8th Cir. 1987) (same); Harbury v. Hayden, 444 19 ( 2006) (same). 4. Class actions are allowed under the FTCA, but only if each member of the class has satisfied FTCA administrative tort claim requirements. Gollehon Farming v. United States, 17 1145 ( 1998) ( the FTCA require[s] claimants to have separately and individually satisfied all jurisdictional requirements ); Bates v.

10 Tenco Services, Inc., 132 160 ( 1990) (Blatt, J.) (allowing only those plaintiffs of the class who filed separate administrative CLAIMS to pursue a claim under the FTCA). the FEDERAL tort CLAIMS act 7-29-08 ds Page 4 of 33 2008 by joseph p. griffith, jr. 843-225-5563 5. FTCA personal injury CLAIMS may be submitted by the injured party, his duly authorized agent, or legal representative. 28 (b); Mintz v. United States, 842 1291 (Table case) (4th Cir. 1988). 6. The proper claimant in a wrongful death claim is one acting on behalf of the decedent, the estate, or the beneficiaries, as determined by state law. An appointment is not necessary to file an administrative claim , but is necessary in order to file suit. Dawson ex rel.