Federal Tort Claims Act

Citizen's Remedy Against Torts Perpetrated by Government Personnel

Title 28 U.S.C. 2675(a) provides, in pertinent part:

"An action shall not be instituted upon a claim against the United States for money damages 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, 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. 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."
 

Title 28 USC 2401(b)

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 or unless action is begun 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.

 

Title 28 USC 2675:

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.

 

Title 28 U.S.C. 2401(b) requires the claimant both to file the claim with the agency within two years after accrual of the claim and then to file a complaint in the District Court within six months after the agency denies the claim.
 

Title 28 USC 2401(b)

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 or unless action is begun 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.
 

Title 28 U.S.C. 2675(a) provides, in pertinent part:

An action shall not be instituted upon a claim against the United States for money damages 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, 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. 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.

Administrative Claims Against United States  

FTCA statute of limitations is two years for filing an administrative claim.

Administrative claim denial starts the next statute of limitations, requiring the filing of an action within six months.
 

If administrative claim is not acted upon, the claimant may, at his option, treat the failure to act as a final denial and commence an action at any time thereafter. an open-ended statute of limitations apply. A specific sum must be demanded.

A request for reconsideration may be made, within the original six-month period after denial and before any action is started. This tolls the original six-month limitation period until the government denied the request for reconsideration, and then another six-month period begins from the date of the second denial


Federal Tort Claims      

Claims covered include:
  • Injury

  • Loss of property

  • Personal injury.
Caused by:
  • Negligent acts by 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 (in that state), would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
  • Wrongful acts.
     
  • Omission.
Claimant must establish:

  • Negligent or wrongful conduct.

  • Scope of employment of the federal employee involved.

 

Claims not covered:

  • Government employees exercising due care, in the execution of a statute or regulation;

  • Discretionary function or duty, regardless of whether or not the discretion involved was abused;

  • Loss, miscarriage, or negligent transmission of postal matter;

  • Claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Claims accruing on or after March 16, 1974, for assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process are covered if they are based upon acts or omissions of federal investigative or law enforcement officers;

 

Financial damages are available through the Federal Tort Claims Act.
 

FTCA statute of limitations is two years for filing an administrative claim.

Administrative claim denial starts the next statute of limitations, requiring the filing of an action within six months.
 

If administrative claim is not acted upon, the claimant may, at his option, treat the failure to act as a final denial and commence an action at any time thereafter. an open-ended statute of limitations apply.
 

Title 28 U.S.C. 2401(b) requires the claimant both to file the claim with the agency within two years after accrual of the claim and then to file a complaint in the District Court within six months after the agency denies the claim.
 

A specific sum must be demanded.
 

A request for reconsideration may be made, within the original six-month period after denial and before any action is started. This tolls the original six-month limitation period until the government denied the request for reconsideration, and then another six-month period begins from the date of the second denial letter.
 

FTCA requires that a claim be presented to the federal government within two years of the occurrence of the claim. Then, a federal FTCA action must be filed within six months of the denial of the administrative claim.  
 

The administrative claim must state a specific money amount for damages. Robinson v. United States Navy, 342 F.Supp.382 (1972). (key 127) Where claimant did not list on administrative form definite amount claimed for personal injuries and did not submit medical records or bills to support personal injury claim, or to aid in estimating its size and, although definite amount of property damage was claimed, no supporting documents were provided, claim form did not contain sufficient information to all the Navy to act, and was not sufficient to satisfy Federal Tort Claims Act requirement.
 

Sufficient administrative claim must be filed with proper federal agency within the statutory period of two years. 28 U.S.C.A. 2401, 2675(a).

State statute of limitations do not affect the two-year federal statute of limitations on FTCA claims.

 

State law controls the question of the existence of a cause of action. 28 U.S.C. 1346(b), 2674. In Tessier v. United States, 269 F2d 305 [First Circuit], the court held that "a claim accrues when it may be made the basis of a judicial action," and that, in turn depends on state law. Accord, Hau v. United States, 575 F2d 1000, 1002 (1st Cir [PR] 1978). "In determining when a claim accrues, for purposes of the Act, this Circuit, unlike other circuits which follow federal law, follows the lex loci rule--the applicable law is the law of the state where the claim arose." Girard v. United States (Veterans Admin.), 455 F Supp 502, 503 (DNH 1978). Caron v. United States, 410 F Supp 378, 387 (DRI 1976)l Jackson v. United States, 182 F Supp 907, 911 (D Md 1960).

Who Caused the Injury?

Accrual of the claim requires knowledge of the injury and its cause. Another critical factor in commencing the running of the statute of limitations requires knowing who inflicted the injury. However, Ninth Circuit courts have held that it is not necessary to know who inflicted the injury for the statute of limitations to be tolled. Dyniewicz v. United States, 742 F2d 484 (9th Cir [Hawaii] 1984).

The administrative claim must be presented to "the appropriate federal agency," (28 USC 2675) whose activities gave rise to the claim. (28 CFR 14.2(b)(1).

If the claim arose out of the activities of more than one agency, this should be made clear in the written claim and a copy of the claim should be presented to each agency involved. See Provincial v. United States, 454 F2d 72 (8th Cir [SD] 1972).
 

Agencies are authorized by the Attorney General's regulations to include a statement of the reasons for the denial. 28 CFR 14.9.

 

In many states, if the injured person does not have knowledge of the existence of the tort, the period of limitations may not begin to run until some later time. See Quinton v. United States, 304 F2d 234, 237-238 (5th Cir Tex 1962), discussing and quoting Bizer v. United States, n. 4, supra, 124 F Supp. at 952; Beech v. United States, 345 F2d 872 (5th Cir [Tex] 1965). The limitations period does not begin to run until the claimant is aware, or reasonably should have been aware, of such wrongful acts. For general discussion on the point, see Steele v. United States, 599 F2d 823 (7th Cir [Ill] 1979). Also see Urie v. Thompson, 337 US 163, 69 S Ct 1018, 93 L ed 2d 1282 (1949) Ware v. United States, 626 F2d 1278 (5th Cir [Tex] 1980).

In case of fraudulent concealment, it is the rule in most jurisdictions that if the one who practices the fraud conceals material facts and thus prevents discovery of his wrong or of the fact that a cause of action has accrued against him, the limitations period will not begin to run until the facts are discovered, or, in the exercise of reasonable diligence, should have been discovered. Holmberg v. Armbrecht, 327 US 392, 397, 66 S Ct 582, 90 L ed 743 (1946). "This equitable doctrine is read into every federal statute of limitations"; 51 Am. Jur. 2d 147.

Actions for fraud are barred from Tort Claims Act coverage, 28 USC 2680(h). In a suit for damages arising out of the evacuation and internment of American citizens of Japanese ancestry during World War II, the claimants  alleged that for 40 years the government had fraudulently concealed the fact that there was no military necessity justifying the internment program. The opinion analyzes the fraudulent concealment doctrine and considerations in the application of the due diligence rule that it incorporates.

In Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985), the court noted in dictum: "When the government actively conceals its own wrongdoing by misrepresentation, there may well be equitable reasons for tolling the statute of limitations.
 

In Diminnie v. United States, 728 F2d 301, 305 (6th Cir [Mich] 1984, the court acknowledged the fraudulent concealment rule but held not applicable where United States itself did not conceal material facts but federal employee acting outside scope of employment did so.

 

 

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