The district courts have exclusive jurisdiction over actions under the FTCA. Also,
the FTCA is the exclusive remedy in any civil case resulting from a tort
committed by a federal employee in the course and scope of employment. If
suit is brought against the employee rather than the United States, the
Attorney General will defend and the suit may be removed to a federal court if
it has been commenced in a state court. However, the Attorney General must
first certify that the employee was acting within the scope of his employment.
Thus, any person who believes he has been injured by a government employee
acting within the scope of his official duties will effectively be in litigation with
the federal government once the Attorney General's certification of the
employee's scope of employment issues. The employee can not be sued in his
individual capacity if the government defends the suit.
Counsel must be aware of certain things when advancing a claim under the
FTCA. There is no right to a jury trial in actions brought under the federal
statute, even if one would have existed in a suit against the employee. 28
U.S.C. § 2402. Also, by forcing the injured party to bring the action against the
federal government instead of the individual federal employee, the two-year
statute of limitations governing FTCA cases applies regardless of state law.
Therefore, the suit may be barred under the FTCA even if the action would
have been timely under the state law. This result works an injustice when the
plaintiff had no reason to believe that the federal government was involved in
the dispute. However, the FTCA’s two- year statute of limitations will also apply
to allow a claim which would be time- barred under state law. For example, a
claim was allowed against the federal government even though the claim had
expired under Maryland’s one-year statute of limitations. Maryland v. United
States, 165 F.2d 869 (4th Cir. 1947).
Importantly, plaintiffs must first file an administrative claim with the
appropriate agency before bringing a tort suit under the FTCA. This claim must
give the governmental agency enough notice of its nature and basis so that it
can begin its own investigation and evaluation, and it must demand payment
for a "sum certain." The administrative claim must be filed within two years of
the injury. 28 U.S.C. § 2401(b). A plaintiff’s failure to first file an administrative
claim will result in the claim being dismissed from the court for lack of subject
matter jurisdiction. Because subject matter jurisdiction cannot be waived, the
requirement to first file with the appropriate agency cannot be waived,
Richman v. U.S., 709 F.2d 122 (1st Cir. 1983); nor can jurisdiction be
stipulated. Bush v. U.S., 703 F.2d 491 (11th Cir. 1983).
After the administrative claim is filed, the agency must deny it in writing before
a suit against the United States can be filed in district court. If the agency does
not act upon the claim within six months, the claim is considered to be denied
and the plaintiff can then proceed to bring the federal claim in court. 28 U.S.C.
§ 2675(a). If the administrative claim is denied outright by the agency or
denial is presumed because of agency inaction for six months, the litigant has
six months to file a tort claim in federal district court.
28 U.S.C. § 2401(b).
Litigants must take special precaution to ensure that the claim proceeds in
proper order. To exemplify: A woman was injured on August 10, 1981 from
falling into a manhole being worked on by the Veterans Administration (VA).
She properly filed the claim with the VA on April 22, 1982. However, she filed
an FTCA claim against the United States in federal district court on August 10,
1982. The VA sent her notice of denial of her administrative claim on October
22, 1982. On May 31, 1983, the district court dismissed the suit for lack of
subject matter jurisdiction because the plaintiff had filed before receiving
notice of denial from the VA. She was allowed to amend her complaint, and
filed the amended supplemental complaint on June 13, 1983. The amended
complaint was also dismissed for lack of subject matter jurisdiction by the
district court. The Fifth Circuit agreed with the dismissal, holding that the claim
was now time-barred. Plaintiff had 6 months to file suit in court after the VA
denied the administrative claim; April 22, 1983 was therefore the relevant
statute of limitations. Plaintiff’s amended complaint was filed after this date.
Furthermore, the amended complaint could not relate back to the original
complaint (August 10, 1982) because the original complaint was prematurely
filed and was not valid. Since an amended complaint cannot relate back to a
date on which the court had no subject matter jurisdiction, her claim was lost.
Reynolds v. U.S., 748 F.2d 291 (5
th Cir. 1984).
Notice means the claim must be sufficiently specific to make the government
aware of the action so it can prepare to defend itself. Goodman v. U.S
F.3d 1048 (9th Cir. 2002) illustrates this requirement. A man filed an
administrative claim against a federal agency for medical malpractice after the
death of his wife. The claim was denied, and one day before the six-month
time limit expired, he filed suit in federal court. Plaintiff later realized that the
proper claim for him to file was a lack of informed consent, not medical
malpractice. However, the United States argued that this claim was time-
barred because six months had run since the claim was denied by the agency,
and he should therefore not be allowed to amend the complaint. The circuit
court of appeal decided otherwise, ruling that the administrative claim alleging
medical malpractice was broad enough to put the government on notice of the
claim for failure to obtain the patient's informed consent for the treatment. The
administrative claim is not required to provide more than the minimal details
of the factual predicate for the claim to put the government on notice. A full
preview of the lawsuit reciting every possible theory of recovery is not