Article Title: the Federal Tort Claims Act in Utah: a Primer

• Publication year: 2000
• Pages: 11-12

Utah Bar Journal Volume 11.

11-12 (2000). Article Title: The Federal Tort Claims Act in Utah: A Primer

November, 2000

Article Title: The Federal Tort Claims Act in Utah: A Primer

Author: Marty Banks

Contact Info

Article

I. Introduction

Ms. Hiker, a longtime client and novice outdoors enthusiast fell and was seriously injured while attempting to scale a mountain peak in a wilderness area managed by the U.S. Forest Service (the "Forest Service"). The rangers who came to the aid of Ms. Hiker told her that the route she was following was for expert mountaineers only. Ms. Hiker said to them that she had not been made aware of this fact and that if she had she would never have embarked on her unpleasant adventure. Another client, Mr. Rancher, has come to you claiming that a Bureau of Land Management (the "BLM") range administrator wrongly ordered Mr Rancher's cattle off of the public range and that as a result the value of his herd has diminished

With approximately 32.5 million acres of land being managed by various agencies of the U.S. government, nearly 60 percent of Utah's land area is under federal control.(fn1) In addition to managing a sizeable portion of land within the state, the federal government is also a major employer in Utah, having some 28,000 civilian workers.(fn2) In light of these statistics, many attorneys practicing in Utah encounter situations like those described above.

Both of the clients above have potential claims against the United States under the Federal Tort Claims Act (the "FTCA"). But how does filing suit under the FTCA differ from filing suit against any other tortious actor? Actually, the differences are numerous, and missteps while wading through the procedural requirements and substantive aspects of the FTCA can be fatal to a client's claim. To properly advise clients, a working knowledge of the procedures and substance of the FTCA is essential.

First, some history. Before the enactment of the FTCA in 1946, the federal government was largely immune to suit. American jurists, citing the common law canon that "the king can do no wrong," adhered to the doctrine of sovereign immunity.(fn3) Anyone wanting to sue the federal government had to petition Congress for a bill specifically authorizing his or her cause of action.(fn4) As the docket of cases awaiting congressional action grew, Congress saw fit to construct a statute authorizing private tort claims against the U.S. government.

The FTCA provides for a limited waiver of sovereign immunity, allowing the public at large to seek damages for the negligence of certain federal employees or agents. Specifically, the FTCA waives sovereign immunity in claims for damages "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."(fn5)

II. Procedural Requirements of the FTCA

A. The Claim

The first step in obtaining a recovery under the FTCA is the requirement of filing an administrative claim for damages with the responsible federal agency. This is a jurisdictional prerequisite, and the claim must be denied by the responsible agency before the filing of a lawsuit. The preferred and most convenient method of doing so requires Standard Form 95 to be filled out, although other written means of notification may suffice.(fn6) Form 95 can be obtained on-line from the U.S. Department of Justice or upon request from the particular federal agency.(fn7) If a claim is made other than on the standard form, practitioners should be aware that the claim must be for a sum certain.

Determining the correct federal agency to file with should be a fairly simple exercise. But if this task proves difficult, take note that a federal agency receiving a claim not attributable to its actions has a duty to transfer that claim to the appropriate agency.(fn8) If the agency receiving the claim fails to make a prompt transfer to the correct agency, resulting in the expiration of the two-year statute of limitations, the claim will be considered as having been constructively filed.(fn9) However, if the filing deadline is imminent, extra care should be used to file with the correct agency. A recent Tenth Circuit decision held that last-minute claims presented to the wrong agency may be barred.(fn10)

B. The Timing

The administrative claim must be filed within two years of the accrual of the claim.(fn11) The date of accrual is determined by federal law, and the statute of limitations begins to run when the claimant learns of his or her injury and its cause.(fn12) Upon receipt, the agency has six months to either settle or deny the administrative claim. While the agency must notify the claimant of any denial of the claim if the agency fails to notify the claimant of the denial within the six-month period, at his or her option the claimant may deem the administrative claim to have been denied and may then proceed to file a lawsuit with the U.S. district court.13 Upon denial of the...