Suing a Governmental Agency

[Holden]

How does one sue a governmental agency?

Must the agency/entity agree to be sued?
Do different levels of government have easier procedures for suing? (FTCA???)
What is the test? Is a negligence suit possible? Does the test differ from say a pothole to imprisoning the wrong person? How about suing a school?

 

[TxStHorn]

Here's my "FTCA Primer." Be aware of the fee cap, it's a Federal offense to violate.The FTCA is very different from the more familiar Texas Tort Claims Act (TTCA). Whenever handling FTCA claims (involving U.S. government vehicles, employees, or property), please be aware of the following:A. An administrative claim must be made to the appropriate agency.The FTCA requires an administrative claim be made within two (2) years of the injury. 28 USCA § 2401(b):

1. The claim must be "presented" to the "appropriate agency" in writing (Government Standard Form 95 is typically used and may be requested from the agency or downloaded atThe Link

2. The claim must state a "sum certain." 28 USCA § 2675. Due to the limitation on recovery contained in 28 USCA § 2675(b), the filing of a sum certain in an administrative claim places a limit on the amount the claimant can recover in any future action. Martinez v. United States, 780 F.2d 525, 530-531 (5th Cir. 1986)($2.6 million award reduced to $2 million, based on $2 million administrative claim);

3. The claim must include evidence of authority to present the claim whenever it is presented by a legal representative on behalf of a claimant. 28 C.F.R. 14.2(a).

The requirement that an FTCA claim against the United States must be presented, then denied, against the appropriate federal agency is jurisdictional. Garcia v. United States, 528 F.Supp. 814, 816 (S.D. Tex. 1982). In other words, a federal court cannot hear the claim, unless the administrative claim is made first. Mandatory procedures must be strictly followed to pursue an action under the FTCA. Rise v. United States, 630 F.2d 1068, 1071 (5th Cir. 1980).

B. Suit MAY NOT be filed until claim is denied in writing or by passage of time (six months), and then, suit MUST be filed within six (6) months of denial.

No suit may be brought until the agency denies the claim in writing by registered or certified mail. If the agency formally denies the claim in writing, the claim will be barred unless suit is begun with six (6) months after the date of the mailing of the notice of denial. 28 USCA § 2401 (b). This is true, even if the two (2) year statute has not lapsed. Page v. United States, 729 F.2d 818, 820 n. 13 (D.C. Cir. 1984).

C. Attorneys’ fees are capped at 25% on FTCA claims.

Attorneys’ fees are statutorily capped at 20% of any settlement or 25% of any verdict. 28 USCA § 2678. FTCA cases must be brought in federal court and no jury trials are allowed. Criminal penalties apply for violation of the fee cap.

D. Discussion.

There are plenty of pitfalls to avoid in an FTCA case. Always file an administrative claim using U.S. Government Form 95 as soon as practicable. Otherwise, you may find yourself stuck against a limitations deadline without having fulfilled the jurisdictional prerequisite of an administrative claim. In addition, always calendar the six (6) month deadline after the claim is filed. The claim will be considered denied by passage of time on that date, unless you receive a response in writing beforehand. Finally, always file suit within six months of the denial of the claim, in writing or by passage of time.

My experience with the FTCA is that ALL claims are denied by the government without a response by passage of time, and the U.S. attorneys’ office will make you try EVERY case. Carefully evaluate the potential FTCA case.

 

[KS1866]

A lot depends on what governmental agency you're suing and what the cause of action is.