Apr 17

Suits Against the Government for Negligence


Pursuing a case under the Federal Tort Claims Act

Suits against the federal government for negligence requires following strict procedures.

The Federal Tort Claims Act (“FTCA”) bars a tort claim against the United States unless first presented to the appropriate federal agency “within two years after such claim accrues.” United States v. Kubrick, 444 U.S. 111, 113 (1979) (quoting 28 U.S.C. § 2401(b)). The federal statute, 28 U.S.C. § 2401(b) provides as follows:

“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.”

28 U.S.C.A. § 2401(b).

Time is of the essence in Negligence cases against the Government

Timely compliance with § 2401(b) is a jurisdictional prerequisite. Fernandez v. United States, 673 F.2d 269, 271 (9th Cir. 1982); Blain v. United States, 552 F.2d 289, 291 (9th Cir. 1977). Federal rather than state law controls when the statute of limitations accrues for a personal injury action brought under the Federal Tort Claims Act. See, e.g., Poindexter v. United States, 647 F.2d 34, 36 (9th Cir. 1981). A plaintiff has a cause of action against the government under the FTCA if he also would have a cause of action under state law against a private person under like circumstances. 28 U.S.C. § 1346(b).

Although the FTCA does not define when a claim “accrues,” the Supreme Court has held that a plaintiff’s medical-malpractice claim accrues when he “knows both the existence and the cause of his injury.” Kubrick, 444 U.S. at 113.

Steps which must be followed when suing the Government

The claim must first be presented to the appropriate federal agency within two years of the claim’s accrual. 28 U.S.C. § 2401(b). A claim is deemed “presented” to a federal agency when the proper claim form (Standard Form 95) or other written notification is received by the agency:

For purposes of the provisions of 28 U.S.C. § 2401(b)2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.”

28 C.F.R. § 14.2(a).

Once SF-95 is presented to the appropriate agency, the agency has six months to consider the claim, and if the agency has not acted within six months then the claimant has the option of deeming it a final denial and proceeding in court. You may lose a valid claim against the federal government if these requirements are not followed. You should contact an attorney like Philip McGrady to review your case.


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