Civil Litigation

Suing the United States Under the Federal Tort Claims Act – Important Information for Attorneys

By November 17, 2021 No Comments

 

Written by Luis Quesada, ESQ

Interactions with employees of the federal government happen routinely. Most people have interacted with USPS employees at the main offices. Other encounters include things like being questioned by an FBI agent or being detained by an ICE officer. What happens if you are injured by one of these government employees? Can you sue the federal government for its actions? The answer is yes, but there are certain steps you need to take before you can go to the courthouse.

The Federal Tort Claims Act (“FTCA”) is a federal statute, enacted in 1946, that allows any person to sue the United States “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

Imagine that while being detained in federal prison, a guard employed by the United States beats a prisoner or fails to give a personalized medicine for which the prisoner has a prescription, and the prisoner is injured as a result of this lack of care. Can a prisoner or his attorneys file a complaint right away at the nearest District Court? Not so fast. Pursuant to the FTCA, an action may not be instituted “unless 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). The FTCA, therefore, contemplates two steps before a lawsuit: (1) presentment of the claim and (2) denial of the claim.

Although the FTCA does not specify how a claim must be presented, federal regulations state that the presentment of a claim has four elements, namely: (i) notification of the incident; (ii) a demand for a sum certain; (iii) the title or capacity of the person signing; and (iv) evidence of this person’s authority to represent the claimant. See 28 C.F.R § 14.2(a). Although federal regulations are instructive, most courts have found they are not “jurisdictional,” meaning strict compliance with them is not required. In any case, submitting an executed Standard Form 95 to the relevant federal agency should be enough to present a claim. It should also be noted that the claimant must present the claim “within two years after such claim accrues.” 28 U.S.C. § 2401(b).

Once a person has presented the claim, he must wait for the government to investigate the matter and issue its decision. If the claim is approved, he may accept the agency’s offer. If the claim is denied, he has then exhausted the administrative remedies, and may now sue under the FTCA. Note that a lawsuit under the FTCA must be commenced “within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). And what happens if the agency does not respond to your claim at all? Under the FTCA, the “failure of an agency to make final disposition of a claim within six months after it is filed” is deemed to be a final denial of your claim. 28 U.S.C. § 2675(a).

One of the most common grounds on which the government moves to dismiss FTCA claims is the failure to exhaust administrative remedies. That is why, although the wheels of bureaucracy may turn slowly, it is important to comply with the statutory requirements of the FTCA before bringing suit. However, you do not have to navigate through this process alone. If you believe you have a claim under the FTCA, contact Ayala Law, P.A. at (305) 570-2208 or attorney Eduardo A. Maura at eduardo@ayalalawpa.com.

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