Claim accrual under the Federal Tort Claims Act: when should claimants file suit against the Federal Bureau of Investigation for tort liability?

• Author: Romasco, Caitlin A.

We want the victim, if there is a victim, to be protected. He is protected with this type of legislation, probably better than if he had to rely on collecting money from a career agent, certainly better than if he had to rely on collecting from a career agent. (1)

-William H. Webster, Director, Federal Bureau of Investigation

The process for filing an administrative claim under the Federal Tort Claims Act (2) ("FTCA") against the Federal Bureau of Investigation ("FBI") requires claimants to comply precisely with its statutory provisions and administrative requirements. (3) Unfortunately, for many claimants, such a process often results in complications due to procedural technicalities. (4) The two-year statute of limitations, based upon a claimant's claim accrual date, often causes issues because of the difficulty of determining the exact date of the injury. (5) For many families of the victims of Winterhill Gang members and FBI informants James "Whitey" Bulger and stephen Flemmi, determining the date claimants should have known they had claims against the FBI proved very difficult. (6)

Most individuals would not initially believe the FBI's possible involvement in the murders and crimes committed against their families. (7) In several decisions by the First Circuit Court of Appeals concerning FTCA claims against the FBI for their involvement with the actions of Bulger and Flemmi, the court found the claims untimely. (8) The court reasoned that the claimants should have known about the information supporting their claims at an earlier date. (9)

Established for the purpose of providing individuals wronged by government agencies a process for adjudicating claims against the United States government, the FTCA effectively serves as a waiver of sovereign immunity. (10) The FTCA requires claimants to fully exhaust the administrative remedies available through the statute before invoking the judicial process. (11) However, many claimants encounter procedural issues during the administrative claims process, which forces them to litigate the procedural issues of administrative claims. (12)

Part I of this Note discusses the intentions and goals of the federal government that relate to what the government hopes to achieve through the FTCA. (13) Part II explains the process for filing an administrative claim against a federal agency under the FTCA. (14) Finally, the Note specifically explores a pattern of "claim accrual date" issues in several decisions by the

First Circuit Court of Appeals. (15) The cases consist of a string of FTCA claims filed against the FBI in connection with the informant relationship between the FBI's Boston field office and Winterhill Gang members James "Whitey" Bulger and Stephen Flemmi. (16) The outcome and reasoning of the cases suggest that claimants must carefully construct an administrative claim under the FTCA by determining whether to list multiple legal theories, because the court may decide to either consider each theory separately, or find accrual based on only one theory if it finds the claimant could access information supporting that theory. (17)

1. LEGISLATIVE HISTORY OF THE FEDERAL TORT CLAIMS ACT

   In 1946, Congress enacted the FTCA as part of a group of legislation under sections 401-424 of the Legislative Reorganization Act ("LRA"). (18) Through the LRA, Con gress intended to waive governmental immunity from tort suits and allow individuals to bring tort claims against the United States for alleged negligence of government employees. (19) Additionally, the heads of government agencies received the authority to settle tort claims not exceeding $1000. (20) Claimants with tort claims below or exceeding $1000 could file directly in federal court. (21) Congress created the FTCA to establish a uniform system for authorizing individuals to bring suits in tort against the United States. (22) The FTCA also established procedures for the administrative adjustment of claims by governmental agencies. (23)

   Congress amended the FTCA in 1966. (24) Con gress primarily intended for the amendments to increase the authority of government agencies to consider tort claims. (25) Before any claims can move to litigation in the federal courts, agencies must consider claims according to regulations established by the Attorney General. (26) The amendments implemented the mandatory process of filing an administrative claim with a government agency before a claimant can file an action against the United States in federal court. (27) Filing directly with the government agency provides the agency notice of the claim and the opportunity to investigate that claim. (28) The amendments further clarified the practical process a claimant must follow in filing an administrative claim against a government agency. (29) Collectively, Congress intended for the amendments to ease court congestion, avoid unnecessary litigation, and expedite fair settlements for claimants against the government. (30)

   Congress considered the prerequisite procedure present in many state statutes, which required claimants to file an administrative claim prior to filing suit in court for tort claims against state governments and municipalities. (31) According to the Justice Department, a procedure that would require claimants to present to the specific government agency their claim of alleged negligent action would yield great productivity, because that agency would have the best access to the information of the activity or event that gave rise to the claim. (32) Additionally, an agency would likely have great interest in settling the claim depending upon liability. (33)

   The amendments increased the claim amount of the tort claims that agencies had the authority to settle before assuming litigation costs and appearing in federal court. (34) Agency heads received the authority to settle claims up to $25,000, while claims exceeding that amount require prior written approval by the Attorney General. (35) By increasing the claim amount from $2500 to $25,000, administrative agencies can make meaningful settlements without requiring the involvement of the courts. (36)

2. FTCA CLAIM PROCEDURES

   1. Current Procedural Requirements for FTCA Claims

      The statutory requirements for filing a tort claim against a government agency require claimants to present an administrative claim to the specific federal agency before bringing suit in court. (37) The regulations for the procedures for filing an administrative claim prescribed by the Attorney General contain more detailed specifications. (38) The regulations specify who can present a claim; when, where, and how to present a claim; and what to submit to the specific government agency. (39) There is no specification of the particular type of documentation required for filing an administrative claim, only that the claim supplies all the required and necessary information in writing. (40) After filing the administrative claim with the appropriate agency, a claimant must wait six months, or until receipt of an agency settlement offer or final denial letter, before bringing suit in federal court. (41)

      The regulations created by the Attorney General allow for agencies to create their own rules, policies, and regulations for handling administrative claims within their specific agency. (42) For example, within the FBI, legal advisors employed by the agency evaluate claims filed under the FTCA. (43) A Principal Legal Advisor ("PLA") examines administrative claims filed against the FBI. (44) For those that comply with statutory and procedural regulations, the PLA either denies the claim or proposes a

      payment for the claim. (45) The PLA considers administrative claims filed against the agency under section 2672 of the FTCA in determining whether to deny the claim or offer a settlement. (46)

      As stated above, under the FTCA, a claimant cannot bring suit in federal court until all administrative remedies have been exhausted. (47) An agency must fully dispose of a claim before exclusive jurisdiction vests in United States federal court to decide the liability of the claim. (48) Despite the prescribed process and rules under the federal statutes for filing tort claims against government agencies, and the benefits achieved to ease court congestion through the 1966 amendments, several issues in the administrative claims procedure often require litigation in federal court. (49)

   2. Judicial/Jurisdictional Treatment of FTCA Claims

      The FTCA's two-year statute of limitations begins to run starting on the claim accrual date. (50) The statutory requirements require strict compliance for filing an administrative claim against a government agency. (51) If a claimant fails to meet the procedural statute of limitations requirement, the claimant forever loses the opportunity to seek relief or justice for their claim. (52) Under the traditional rule for FTCA claim accrual, a claim begins to accrue on the date of the plaintiff s injury. (53)

      In United States v. Kubrick, (54) the Supreme Court created a "discovery rule" for assessing the claim accrual date of an FTCA claim for medical malpractice cases. (55) The Court held that a claim accrues when the plaintiff knows of both the existence and the cause of his injury. (56) The Court enforced the adherence to the statute of limitations requirement because the provision ensures that the "government is promptly presented with a claim while the evidence is still fresh, [and the evidence] is to be strictly construed in the government's favor." (57)

      Many of the United States Courts of Appeals use the discovery rule in non-malpractice cases "where plaintiffs face comparable problems in discerning the fact and cause of their injuries." (58) Specifically, the First Circuit Court of Appeals expanded the use of the discovery rule beyond the medical malpractice context. (59) The court uses the discovery rule when evaluating the plaintiff s legal theory or theories articulated in the FTCA...