Michael A. Bottar, Federal Tort Claims Act

A Desktop Guide To
Federal Tort Claims

Within The United
States Court of Appeals
For The Second Circuit
(2015 ed.)
Michael A. Bottar, Esq.

Bottar Leone, PLLC
1600 AXA Tower II
120 Madison Street
Syracuse, NY 13202
T: (315) 422 3466
F: (315) 422 4621
mbottar@bottarleone.com
www.bottarleone.com
In and For Upstate New York. Since 1983.
A Desktop Guide to Federal Tort Claims Within the United States Court of Appeals for the Second Circuit
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About the Desktop Guide

The Desktop Guide is a survey of Federal Tort Claims Act cases within the
Second Circuit Court of Appeals (primary New York federal courts). It is intended to
provide only a starting point for the Bar. Whether by accident or design, case law cited
herein is not exhaustive. Further, there may be minority or contrary case law on any
given point.
Questions, comments, or concerns, as well as requests for reproduction, should
be submitted to the author by email at mbottar@bottarleone.com.
2015 Michael Anthony Bottar, Esq. Bottar Leone, PLLC 1600 AXA Tower II 120 Madison St. Syracuse, NY 13202 (315) 422-3466 bottarleone.com
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Table of Contents
I.
INTRODUCTION.
A. History and Summary.
II.
IDENTIFYING THE GOVERNMENTAL ACTOR...
III.
THE ADMINISTRATIVE CLAIM
10
A. Exhaustion
i. Statutory Exemption to Exhaustion Westfall...
11
13
B. Written Notice..
i. Format..
ii. Presentment.
iii. Submission By.
iv. Essential Contents..
a. Adequate Notice..
b. Sum Certain.
c. Signed and Dated...
14
14
16
17
20
20
24
26
C. Appropriate Agency ...

i. Wrong Agency.
ii. Multi-Agency Claims...
27
28
29
D. Agency Requests for Additional Information..
29
E. Statute of Limitations..
i. Accrual..
ii. Diligence-Discovery ...
a. Medical Malpractice ...
b. Non-Medical Malpractice..
iii. Continuous Treatment
iv. Incompetency..
v. Insanity.
vi. Infancy..
vii. Ignorance About Government involvement
30
30
31
31
32
33
33
34
34
34
F. Computation of Time.
i. Two Years..
ii. Six Months..
iii. Request for Reconsideration..
iv. Withdrawal of Claim..
v. Negotiations..
vi. Final Denial..
34
35
35
36
37
37
37
G. Amendments ...
38
IV.
V.
VI.
VII.
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H. Equitable Tolling.
38
THE FEDERAL ACTION
45
A. Elements of Complaint...
45
B. Service..
46
C. Substantive Law..
46
D. Proper Defendant
47
E. Supplemental Jurisdiction
47
...
F. Scope of Employment
47
G. Bars to Recovery
i. Discretionary Function and Due Care.
ii. FECA.
iii. Feres
iv. Intentional Torts..
v. Strict Liability
49
50
50
50
50
51
H. Prosecution..
51
I.
52
Available Damages.
RESOLUTION.
53
A. Settlement Authority
53
B. Release.
53
C. Infant Claims
54
D. Attorneys Fees
54
FTCA STATUTES AND REGULATIONS
...
55
A. Statutes.
55
B. Regulations..
63
APPENDIX
A.
B.
D.
E.
F.
Standard Form 95..

Attorney Authorization
Agency Acknowledgement Letter
...
Agency Denial Letter..
List of U.S. Departments and Agencies
...
About the Author.
72
75
77
87
91
103
I.
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INTRODUCTION
A.
History and Summary
Prior to 1946, the United States was immune from negligence suits under the
doctrine of sovereign immunity. In order to avoid the burden of passing private relief
bills, Congress passed the Federal Tort Claims Act.
The FTCA, 28 U.S.C. 1346(b), 2401(b) and 2671-2680, constitutes a limited
waiver by the United States of its sovereign immunity and allows for a tort suit against
the United States under specified circumstances. Under the FTCA, a private citizen
may sue for injuries 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.
Under the FTCA, sovereign immunity is waived if a claim meets six requirements:
(1)
brought against the United States,
(2)
for money damages,
(3)
for injury to or loss of property, or personal injury, or death,
(4)
caused by the negligent or wrongful act or omission of any employee of

the Government,
(5)
while acting within the scope of his or her office or employment, and
(6)
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.
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The Second Circuit has stated that the purpose of the FTCA is both to allow
recovery by people injured by federal employees or by agents of the Federal
Government, and, at the same time, to immunize such employees and agents from
liability for negligent or wrongful acts done in the scope of their employment. Celestine
v. Mount Vernon Neighborhood Health Center, 403 F.3d 76 (2d Cir. 2005) (citing 28
U.S.C. 2679(b)(1) and 42 U.S.C. 233(a)).
The FTCA, with few limited exceptions,
provides the exclusive means by which individuals can seek compensation when injured
by federal employees. Some highlights of the FTCA follow:
Negligence claims are allowed, but claims for intentional torts and strict
liability are not. 28 U.S.C. 2680.
Waiver of sovereign immunity is limited and must be strictly construed in

favor of continuing immunity. 28 U.S.C. 2680.
Claimant must present an administrative claim to the appropriate

government agency for adjudication before filing suit. 28 U.S.C. 2675(a).
FTCA statute of limitations requires claim presentation to an agency within

2 years of accrual. 28 U.S.C. 2401(b).
FTCA statute of limitations requires commencement of suit within 6 months

of formal claim denial (or silence for 6 months). 28 U.S.C. 2401(b).
U.S. District Courts have exclusive jurisdiction to hear FTCA claims.
Venue proper in district where the plaintiff resides or where the

act/omission occurred. 28 U.S.C. 1402(b).
FTCA provides only for non-jury trials. 28 U.S.C. 2402.
No punitive damages. 28 U.S.C. 2674.
No prejudgment interest damages. 28 U.S.C. 2674.
Attorney fees are fixed at 20% of an administrative settlement, and 25% of

a judgment or compromise after suit is filed. 28 U.S.C. 2678.
II.
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IDENTIFYING THE GOVERNMENTAL ACTOR

A list of the nearly 500 United States government departments and agencies is
set forth at pages 91 through 102. At the risk of stating the obvious, practitioners should
assume that a governmental actor is in involved until proven otherwise.
In 1993, the scope of the FTCA was expanded when medical malpractice
coverage was extended to grantees of the Department of Health and Human Services
(HHS) Health Resources and Services Administrations (HRSA) Health Center
Program (HCP).1 Now, FTCA coverage applies to health centers that receive funding
under Section 330 of the Public Health Service Act,2 as well as their employees, board
members, and contractors who are deemed employees.
The HCP includes
community health centers, health centers for homeless and migrant populations, and
health centers in public housing complexes.3
Initially, Congress enacted the Federally Supported Health Centers Assistance Act of
1992 (Pub L. No. 102-501, 106 Stat. 3268) to provide FTCA medical malpractice
coverage to the HCP for three years. Subsequently, the coverage was made
permanent by the Federally Supported Health Center Assistance Act of 1995 (Pub. L.
No. 104-73, 109 Stat. 777, codified at 42 U.S.C. 233(g)-(n).
See 42 U.S.C. 254(b).
Searches for federally-qualified health centers (FQHC) and federally-qualified health

center look-alikes (FQHCLA) can be run by (1) address, (2) county, or (3) state, via
the Find A Health Center tool available on the United States Department of Health &
Human Services website, at findahealthcenter.hrsa.gov.
As of July 1, 2015, there were 443 FQHCs and/or FQHCLAs in the following New
York counties: Albany (3), Bronx (82), Cattaraugus (1), Cayuga (5), Chautauqua (1),
Columbia (1), Cortland (9), Dutchess (8), Erie (3), Essex (5), Franklin (1), Hamilton (1),
Kings (68), Livingston (3), Monroe (35), Montgomery (1), Nassau (8), New York (86),
Niagara (2), Oneida (1), Onondaga (8), Ontario (2), Orange (15), Orleans (3), Oswego
(3), Queens (27), Rensselaer (1), Richmond (5), Rockland (7), St. Lawrence (1),
Saratoga (1), Schenectady (1), Steuben (1), Suffolk (1), Sullivan (5), Ulster (7), Warren
(9), Washington (1), Wayne (3), Westchester (14), and Yates (4).
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With regard to FTCA qualified or deemed-qualified healthcare facilities contain

one or more of the following buzzwords in the name of the facility:
Center,
Clinic,
Community,
Mission,
Mobile,
Outreach,
Project,
School-Based,
Service(s); and
Shelter.
At the risk of stating the obvious, the presence of multiple buzzwords, e.g., Community
Health Center, Mobile Health Clinic, Pediatric Health Services Project, is a strong
indicator of federal involvement. As a corollary, the names of many FTCA facilities
contain no words or information that would suggest a federal connection, e.g., West
Mountain Primary Care, the Pines at Glens Falls, Lipman Family Dental Center, Summit
Pediatrics, North Country OBGYN, etc.
To quote the Department of Health and Human Services website, you may wish
to check with the health center to confirm [whether] a particular entity [is federallyfunded].
A.
Key Personnel
i.
Department of Health and Human Services

General Counsel:
William B. Schultz, Esq.
200 Independence Avenue, S.W., Room 713-F
Washington, D.C. 20201
T: 202-690-7741
F: 202-690-7998
E: william.schultz@hhs.gov
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Associate General Counsel, General Law Division:

Daniel Barry, Esq.
330 Independence Avenue, S.W., Room 3562
Washington, D.C. 20201
T: 202-619-0150
F: 202-619-2922
E: daniel.barry@hhs.gov
Deputy Associate General Counsel, GL Division, Claims Branch:
William Biglow, Esq.
330 Independence Avenue, S.W.
T: 202-619-0171
F: N/A
E: william.biglow@hhs.gov
Regional Office of the General Counsel, New York (Region 2):
Joel Lerner, Esq.
Jacob Javits Federal Building , 26 Federal Plaza, Rm. 3908
New York, NY 10278
T: 212-264-6373
F: 212-264-6364
E: joel.lerner@hhs.gov
ii.
U.S. Department of Veterans Affairs

General Counsel:
Leigh A. Bradley, Esq.
810 Vermont Avenue, N.W.
Washington, D.C., 20420
T: 202-273-6660
F: 202-273-0197
E: leigh.bradley@va.gov
Regional Counsel, Brooklyn:
George Burns, Esq.
800 Poly Place, Building 14, Brooklyn, NY 11209
T: 718-630-2901
F: 718-630-2900
E: george.burns@va.gov
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Regional Counsel, Buffalo/Albany/Syracuse:

Joseph G. Moreno, Esq.
120 LeBrun, Buffalo, NY 14215
T: 716-862-8853
F: 700-432-6545
E: joseph.moreno@va.gov
Georgette Gonzalez-Snyder, Esq.
Office of Regional Counsel, Region 21, Syracuse Area Office
800 Irving Avenue, Syracuse, NY 13210
T: 315-425-4838
F: 315-425-4858
E: georgette.gonzales-synder@va.gov
Kevin B. Thiemann, Esq.
Office of Regional Counsel, Region 21, Albany Area Office
113 Holland Avenue, Albany, NY 12208
T: 518-626-6949
F: 518-626-6948
E: kevin.thiemann@va.gov
iii.
United States Postal Service

General Counsel:
Thomas J. Marshall, Esq.
United States Postal Service
475 LEnfant Plaza, S.W.
T: 202-268-2000
E: thomas.j.marshall@usps.gov
iv.
Army
Office of the Judge Advocate General:
U.S. Army Claims Service
ATTN: JACS-TCO
4411 Llewellyn Avenue, Suite 5360
Fort George G. Meade, Maryland 20755
T: 301-677-7009
v.
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Navy
Office of the Judge Advocate General:
Tort Claims Unit Norfolk
9620 Maryland Avenue, Suite 205
Norfolk, VA 23511
T: 757-341-4583
F: 757-341-4562
E: tortclaimsunit@navy.mil
vi.
Customs and Border Protection

Chief Counsel:
Scott K. Falk, Esq.
1300 Pennsylvania Avenue, N.W.
T: 202-344-2940
F: 202-344-2950
III.
THE ADMINISTRATIVE CLAIM4

An administrative claim should be presented before a lawsuit may be
commenced against the United States of America. The claim should be presented to
the appropriate federal agency, e.g., Army, Navy, Air Force, Department of Veterans
Affairs, Postmaster General, Department of Health and Human Services, etc., within
two (2) years from the date the claim accrued.
The Government may refer to the 374 page Federal Tort Claims Handbook (FTCH)
when reviewing, evaluating, processing and/or defending a claim or action. An
electronic
copy
of
the
FTCH
may
be
found
at
http://biotech.law.lsu.edu/cases/immunity/ftca_handbook.pdf.
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Following presentation, action on the part of the relevant agency will either be:
(1) acceptance and settlement negotiations, (2) a request for additional information,5 (3)
denial of the claim,6 or (4) no response. Following denial, or the passage of six (6)
months without word from the agency, a summons and complaint can be filed.7
A.
Exhaustion
A claimant must exhaust administrative remedies before filing suit. The need to
present a claim before commencing an action is jurisdictional. See Adams v. U.S. Dept.
of Hous. & Urban Dev., 807 F.2d 318, 321 (2d Cir. 1986). Stated differently, a court
does not have subject matter jurisdiction over an action filed in federal court unless the
claimant has exhausted administrative remedies set forth in the FTCA.
Actions
commenced prematurely are subject to dismissal. See, e.g., McNeil v. U.S., 508 U.S.
106, 113 (1993) (FTCA bars claimants from bringing suit in federal court until they have
exhausted their administrative remedies); Adeleke v. U.S., 355 F.3d 144, 153 (2d Cir.
2004) (plaintiff must file an administrative claim with the appropriate federal agency
before suing for relief in federal court); Millares Guiraldes de Tineo v. U.S., 137 F.3d
An example of an agencys request for additional information is set forth at pages 77-86.
An example of an agencys denial is set forth at pages 87-90.
Where a claimant submits a deficient claim, the agency may/might notify the claimant
in writing that the failure to timely submit a proper claim may result in the statute of
limitations barring the claim. See Kelley v. U.S., 568 F.2d 259 (2d Cir. 1978), cert.
denied, 439 U.S. 830 (1978); see also Danowski by Danowski v. U.S., 924 F.Supp. 661
(D.N.J. 1996) (failure of USPS to notify claimant of defect leads to court holding that
fathers claim for sons medical bills paid by him was constructively filed); James v. U.S.,
2000 WL 1132035 (S.D.N.Y. 2000) (equitable tolling available to plaintiff because VA
failed to furnish plaintiff with a standard form 95 and/or the need to file one).
However, it appears that the Government is under no obligation to inform a
claimant that his/her notice of claim is insufficient. See, e.g., Donahue v. U.S. Transp.
Sec. Admin., 457 F.Supp.2d 137 (E.D.N.Y. 2006) (Spatt, J.) (informing the claimant that
a claim was insufficient was done merely out of courtesy).
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715, 719 (2d Cir. 1998) (limitations set forth in the FTCA foreclose suit unless the tort
claimant has previously presented to the appropriate administrative agency a claim that
meets the specific statutory requirements as to its form, content and timing). In theory,
[p]resentment serves the purpose of permitting the Federal Agency to conduct an
investigation into the claimants allegations and to estimate the value of the claim . . . .
Donahue v. U.S., 457 F.Supp.2d 137, 140 (E.D.N.Y. 2006) (Spatt, J.).
The presentment requirement is strictly construed. Johnson v. Smithsonian Inst.,
189 F.3d 180, 189 (2d Cir. 1999).
A court cannot waive the administrative filing
requirement, even if the claimant seeks an accommodation for disability or hardship.

See Frasier v. U.S. Dept. of Health and Human Services, 779 F.Supp. 213 (N.D.N.Y.
1991) (Scullin, J.). Further, the requirement applies equally to litigants regardless of
whether they are represented by counsel or are proceeding pro se. Holmes v. U.S.,
2005 WL 2298159 (S.D.N.Y. 2005) (Daniel, J.). All ambiguities are resolved in favor of
the government. See Moreno v. U.S., 965 F.Supp. 521, 524 (S.D.N.Y. 1997) (Kram, J.).
A good faith intention to comply with the requirements of the FTCA cannot and
does not substitute for actual compliance. See OConner v. U.S., 2000 WL 375238
(S.D.N.Y. 2000) (Batts, J.).
Where the potentially negligent actor is an individual, a party may not skirt
exhaustion by filing an action directly against the United States. See, e.g., Kaufman v.
U.S., 2014 WL 3845074 (N.D.N.Y. 2014) (McAvoy, J.) (dismissing birth injury action
against physician for failure to exhaust administrative remedies, and subsequent action
against United States for same reason).
i.
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Statutory Exemption To Timely Exhaustion Westfall Act
Generally, a lawsuit that is commenced prematurely (i.e., before exhaustion) is

treated as a nullity and is subject to dismissal. However, the law affords some flexibility
when a plaintiff overlooks exhaustion and files a complaint within the prescribed time for
administrative review (i.e., two years from accrual).
In 1988, Congress passed the Federal Employees Liability Reform and Tort
Compensation Act (the Westfall Act), which expressly provides that while the
administrative exhaustion requirement would apply to all actions, even those removed8
from state court, plaintiffs would be given an opportunity, after the removal, to exhaust
those remedies. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d at
83.
The Westfall Act partially remedies the perceived injustice of requiring a plaintiff
who lacks reason to know that his state court suit, in fact, lies only against the United
States and can, therefore, be removed to federal court, to comply with an exhaustion
requirement of which the plaintiff almost assuredly is unaware. Celestine, 403 F.3d at
83 (discussing Kelley v. United States, 568 F.2d 259 (2d Cir.1978) (which carved out a
judicial exception to exhaustion for FTCA claims brought initially in state court)). Under
the Westfall Act, an FTCA complaint filed before the plaintiff exhausts administrative
remedies may still be dismissed. Notwithstanding, if the case is one in which the United
States [was] substituted as the party defendant, then the plaintiff may submit a notice
Removal papers will include a certification that the individually named defendant was,
at the relevant time, employed by the United States and acting within the scope of his or
her duties. While this certification carries weight, this certification by the Government is
not the final word. Catania v. Herbst, 2012 WL 4748077 (E.D.N.Y. 2012) (Spatt, J.).
Thus, certifications are judicially reviewable.
Page | 14
of claim to the appropriate Federal agency within 60 days after dismissal, as long as
the notice would have been timely had it been filed on the date the civil action was
commenced. 28 U.S.C. 2679(d)(5).
Accordingly, a state tort claim against a
deemed federal employee that is transformed into an FTCA claim against the United
States is not forever barred for the plaintiff's prior failure to file a timely notice of claim,
if the state complaint was filed within two years after [the] claim accrue[d]. 28 U.S.C.
2401(b).
Short of filing, mere steps taken in connection with a potential lawsuit do not
amount to commencement sufficient to trigger savings under Westfall. See Phillips v.
Generations Family Health Center, 723 F.3d 144 (2d Cir. 2013) (Connecticut statute
allowing a party to file a petition for a [90 day] extension of time to [make a reasonable
inquiry into whether there is a good faith belief to file suit] makes clear that the petition
does not commence anything).
B.
Written Notice
The appropriate administrative agency must timely be presented with written

notice of an administrative claim.
i.
Format
Format is less important than substance. The substance of the written notice is
critical.
Generally, written notice is supplied by submitting a properly completed
Standard Form 95 (SF95).9
A blank SF95 has been reproduced, infra, at pages 72-74. An electronic copy can be
found at http://www.usdoj.gov/civil/docs_forms/SF-95.pdf.
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A letter from a claimant to an agency is acceptable if it contains the appropriate

elements. See, e.g., Pinchasow v. U.S., 2006 WL 3370714 (2d Cir. 2006) (while letter
may suffice to provide notice of incident, it was inadequate because it did not contain a
sum certain); Sovulj v. U.S., 2003 WL 21524835 (E.D.N.Y. 2003) (Block, J.) (letter
presented to agency was adequate notice because it contained allegations of
negligence and a sum certain that provided sufficient information for the agency to
commence an investigation); DiLorenzo v. U.S., 496 F.Supp. 79 (S.D.N.Y. 1980)
(Broderick, J.) (claimants letters to FBI, DEA and DOJ complaining about his medical
treatment were insufficient as they spoke about a potential lawsuit, and did not contain a
sum certain or any indication that claimant was seeking monetary relief); Dolan v. Dept.
of Army, 1999 WL 199012 (S.D.N.Y. 1999) (Koetl, J.) (claimants letter to DOD
describing how injury occurred, detailing injuries and requesting that DOD contact him
was inadequate without sum certain).
Miscellaneous documents may provide adequate written notice.
See, e.g.,
Millares Guiraldes de Tineo v. U.S., 137 F.3d 715 (2d Cir. 1998) (personal delivery to
DEA agent of a document titled Memory Aid acceptable if had it contained a written
sum certain).
A filed state court lawsuit is not a claim. See Pinchasow v. U.S., 2006 WL
3370714 (2d Cir. 2006) (Gershon, J.) (summons and complaint filed in the Supreme
Court of State of New York did not constitute appropriate notice because court
documents alone do not notify the agency that a claimant seeks administrative relief).
ii.
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Presentment
A claim is not presented until the appropriate agency receives written notice.
See 28 C.F.R. 14.2(a); Jaghama v. U.S., 2013 WL 508497 (E.D.N.Y. 2013) (Gershon,
J.) (proof of mailing is inadequate); Lotrionte v. U.S., 560 F.Supp. 41 (S.D.N.Y. 1983)
(Pollack, J.).
Who, specifically, within the agency receives written notice appears to be
unimportant. See Frey v. Woodard, 481 F.Supp.1152 (E.D.Pa. 1979) (delivery of claim
to Marine Corps Enlistment Recruiting Office was presentment to agency), revd on
other grounds, 748 F.2d 173 (3d Cir. 1984).
While there is no mailbox rule in the statute, some courts have applied this logic
to FTCA cases. Therefore, proof of mailing may/might create a rebuttable presumption
of receipt. See Cordaro v. Lusardi, 354 F.Supp. 1147 (S.D.N.Y. 1973) (Gurfein, J.),
affd without opinion, 513 F.2d 624 (2d Cir. 1975) (applying rebuttable presumption and
denying governments motion for summary judgment where claimants attorney
submitted an affidavit stating that written notice was mailed to agency 17 months after
accident).
Then again, maybe not. See Payne v. U.S., 10 F.Supp.2d 203, 205 (N.D.N.Y.
1998) (Kahn, J.) (finding that photocopies of letter and notice of claim that were
allegedly mailed were not sufficient to establish receipt by appropriate federal agency).
Page | 17
To the extent that the mailbox rule is viable, it is a tenuous argument, at best,
and will easily be defeated by the government. See, e.g., Garland-Sash v. Lewis, 348
Fed.Appx. 639 (2d Cir. 2009) (even assuming that Garland-Sash could benefit from the
common-law mailbox rule to salvage her FTCA claim . . . she has neither alleged nor
provided any evidence indicating that an FTCA claim was, in fact, mailed); Glover v.
U.S., 111 F.Supp.2d 190 (E.D.N.Y. 2000) (Trager, J.) (dismissing claim where
government submitted affidavits from USPS denying receipt of claim by mail); Vecchio
v. U.S., 2005 WL 2978699 (S.D.N.Y. 2005) (Crotty, J.) (governments two employee
affidavits of non-receipt overcame evidence submitted by claimant that notice was
mailed to West Point); Rodriguez v. U.S., 2003 WL 21961121 (S.D.N.Y. 2003) (Stein,
J.) (finding that plaintiffs assertions that she filed an administrative claim with the proper
agency did not amount to presentment where government proffered sworn affidavits
that the claim was never received).
iii.
Submission By
A claim may be submitted by the injured party, an agent, or a legal

representative. See 28 C.F.R. 14.3(b).
Where there are multiple claimants seeking a recovery from a single tort, each
claimant must individually satisfy the jurisdictional prerequisite for filing a proper claim,
unless another is legally entitled to assert a claim on their behalf. Hodder v. U.S., 328
F.Supp.2d 335, 359 (E.D.N.Y. 2004) (Pollak, M.J.) (refusing to consider issue of
damage to car because wifes administrative claim alleged that husband owned car and
husband, who was title owner, did not submit administrative claim).
Page | 18
It is well-settled that parents may submit claims for their children. In fact, it
appears that almost anyone may submit an administrative claim for a child as their next
friend or guardian ad litem. See Seide v. Prevost, 536 F.Supp. 1121 (S.D.N.Y. 1982)
(Sweet, J.) (members of Board of Visitors could submit administrative claim on behalf of
patient-children). A next friend is anyone who has an interest in the welfare of an
infant who may have a grievance or a cause of action. Child v. Beame, 412 F.Supp.
593, 599 (S.D.N.Y. 1976) (Weinfeld, J.).
In a wrongful death action, the proper claimant is the executor or administrator of
the decedents estate, or any other person legally entitled to assert such a claim in
accordance with applicable state law.
See 28 C.F.R. 14.3(d).
It appears that
appointment is not necessary before an administrative claim may be presented. See

Byrne v. U.S., 804 F.Supp. 577, 582 (S.D.N.Y. 1992) (Leisure, J.) (Although plaintiff
was not the personal representative of the decedent at that time, his submission
provided the government with the minimal notice required under the FTCA so that it
could adequately investigate the claim.); Knapp v. U.S., 844 F.2d 376, 380 (6th Cir.
1988) (holding that even though plaintiff had not received letters of authority when she
presented [her administrative claim], this circumstance had no effect on her right to sue
under the FTCA once she had qualified).
However, the Southern District of New York held otherwise in a 1983 decision.
See DelValle v. Veterans Administration, 571 F.Supp. 676 (S.D.N.Y. 1983) (Carter, J.)
(dismissing action because no evidence that claimants, who submitted forms through
their attorney, were personal representatives of the decedent).
Page | 19
Setting aside administrative notice, appointment is necessary before an action

can be commenced in a district court. See Byrne, 804 F.Supp. at 582 (plaintiff was
decedents duly appointed executor at the time this action was commenced . . . plaintiff
has met the minimal requirements of 28 U.S.C. 2675(a)).
Derivative claimants are cautioned to file written notice separate from the primary
or underlying claim. See, e.g., Jackson v. U.S., 488 F.Supp.2d 191 (N.D.N.Y. 2007)
(Kahn, J.) (dismissing spousal claim not presented during administrative process);
Wisner v. U.S., 154 F.R.D. 39 (N.D.N.Y. 1994) (Hurd, J.) (mere mention of name of
spouse in filed claim did not put defendant on notice of the claim as derivative spouse
was not listed as claimant, nor was nature of claim articulated); Rispoli v. U.S., 576 F.
Supp. 1398, 1403 (E.D.N.Y. 1993) (Platt, J.) (dismissing derivative claim where spouse
not listed in SF95, only in separate affidavit, and no response to demand for separate
sum certain), affd without opinion, 779 F.2d 35 (2d Cir. 1985), cert. denied, 474 U.S.
1069 (1986); Willie v. U.S., 1993 WL 184149 (N.D.N.Y. 1993) (McAvoy, J.) (dismissing
spousal claim filed without separate sum certain); Fol v. U.S., 548 F.Supp. 1257, 1258
(S.D.N.Y. 1982) (Pollack, J.) (dismissing derivative claim because spouse not listed as
claimant in SF95); Heaton v. U.S., 383 F.Supp. 589 (S.D.N.Y. 1974) (Knapp, J.) (court
lacks jurisdiction over wifes claim for loss of services since administrative complaint
alleged only husbands personal injury).
Page | 20
If a separate derivative claim is not presented, all hope is not lost. See Sciolino
v. U.S., 2001 WL 266024 (W.D.N.Y. 2001) (Elfvin, J.) (spousal derivative claim viable,
despite fact that spouse did not submit separate written notice, because notice
submitted contained name and date of birth of husband and wife, claim was signed by
wife individually and as spouse, enclosure indicated that claim was being submitted on
behalf of husband and wife, and claim included sum certain for husband, and separate
sum certain for derivative spouse).
In sum, where a plaintiff asserts multiples claims on a single claim form, the form
much give constructive notice of each additional claim, or the extra claims will later
be dismissed. The plaintiff bears the burden of establishing that the single claim for
gave constructive notice. See, e.g., Johnson v. U.S., 594 F.Supp. 728 (E.D.N.Y. 1984)
(Nickerson, J.), affd, 788 F.2d 845 (2d Cir. 1986), cert. denied, 479 U.S. 914 (1986)
(claim for assault and battery did not preserve jurisdiction for negligent supervision).
iv.
Essential Contents
a.
Adequate Notice
The mere act of filing a SF95 with the appropriate agency does not necessarily
fulfill the presentment requirements of 2675(a).
Written notice timely filed with the
appropriate agency may be insufficient to toll the statute of limitations if it does not
provide enough information to permit the agency to conduct an investigation and to
estimate the claims worth.
Romulus v. U.S., 983 F.Supp. 336 (E.D.N.Y. 1997)
(Trager, J.), affd, 170 F.3d 131 (2d Cir. 1998).
Page | 21
Stated differently, a claim meets the presentment requirements of 2675(a) only if

it is specific enough to serve the purposes intended by Congress in enacting 2675(a)
to ease court congestion and avoid unnecessary litigation, while making it possible for
the Government to expedite the fair settlement of tort claims. Johnson v. U.S., 788
F.2d 845, 848-49 (2d Cir. 1986), cert. denied, 479 U.S. 914 (1986). That being said, an
administrative claim need not meet formal pleadings requirements, nor must a claim
state a cause of action. See id.; Downs v. U.S., 2009 WL 2611226 (N.D.N.Y. 2009)
(Scullin, J.) (So long as basic information is provided, the question is whether a
reasonably thorough investigation should have uncovered any pertinent information in
the government's possession. Thus, even a relatively bare-bones SF95 should trigger
an agency investigation, and the agency should then anticipate claims stemming from
any pertinent information in the government's possession.).
The burden is on the claimant to provide adequate details, as it is not the
responsibility of the agency to request any information missing from a SF 95. See
Keene Corp. v. U.S., 700 F.2d 836, 842 (2d Cir. 1983). Certainly, an agency need not
ponder what it does not know during the administrative review process. Guthrie v. Fed.
Bureau of Prisons, 2010 WL 2836155 (S.D.N.Y. 2010) (Preska, J.).
Whether the agency received adequate notice is determined on a case-by-case
basis. At a minimum, administrative notice should include the time and date of the
incident,10 the individuals involved, and a reasonably detailed description of injuries and
damages.
10
See Shoemaker v. U.S., 1997 WL 96543 (S.D.N.Y. 1997) (Scheindlin, J.) (no claim
without time and date).
Page | 22
Most decisions arise out of claims where the particulars supplied about the
damage were less than ideal. See, e.g., Lee v. U.S., 2014 WL 2750002 (2d Cir. 2014)
(general description of injury to the neck, back and right shoulder without
supplemental information failed to satisfy 2675(a)); Davis v. U.S., 2013 WL 5225931
(S.D.N.Y. 2013) (general SF95 and failure to respond to agency examiners requests
was inadequate presentment); Henry v. U.S. Dept. of Homeland Sec., 2011 WL 477719
(E.D.N.Y. 2011) (Bianco, J.) (satisfying particularity requirement as form provided time,
date, location, basis for claim, nature and extent of injury, and amount being sought);
Lopez v. Zenk, 2008 WL 3285895 (E.D.N.Y. 2008) (Dearie, J.) (sufficient notice of claim
for denial of medical care); Donahue v. U.S. Transp. Sec. Admin., 457 F.Supp.2d 137
(E.D.N.Y. 2006) (claim invalid where notice document alleged serious, permanent
physical injuries and mental anguish as well as hospital treatment and medical
treatment); (State Farm Mut. Auto. Ins. Co. v. U.S., 326 F.Supp.2d 407 (E.D.N.Y. 2004)
(Garaufis, J.) (plaintiff supplied adequate notice about motor vehicle accident with sum
certain); Souvulj v. U.S., 2003 WL 21524835 (E.D.N.Y. 2003) (Block, J.) (Although it is
a close question, under a lenient interpretation of the notice requirement, the Court
concludes that plaintiffs skeletal administrative claim presented sufficient information for
the agency to begin an investigation.); compare Tamares v. U.S., 2009 WL 691002
(S.D.N.Y. 2009) (Leisure, J.) (no presentment where injuries were insufficiently detailed,
the damages were poorly documented and agency requests for additional information
went unfulfilled, despite fact that agency received some documentation from another
source); Sorge v. U.S., 1997 WL 603451 (S.D.N.Y. 1997) (Owen, J.) (dismissing claim
despite notice providing that accident caused claimant to sustain multiple bodily
Page | 23
injuries and severe permanent personal injuries to his neck and back the full extent
of which is not presently known, because claimants injury description was vague and
claimant did not supply records describing the injuries for which he sought $5 million);
Schunk v. U.S., 783 F.Supp. 72, 81 (E.D.N.Y. 1992) (Platt, J.) (claimants short factual
statement about a Tylox prescription he received at VA was inadequate for the
government to investigate a complex medical malpractice action involving other
medications, as well as mistreatment in the hospital).
In addition to ensuring that the government is placed on adequate notice about a
claim, practitioners should be comprehensive when drafting the written notice for a
second reason i.e., so that they are not precluded from asserting a theory of liability or
element of damage at trial. In other words, a claimants suit may be brought only on
those facts and theories of liability raised in the administrative claim. A claimant cannot
present one claim to the agency and then maintain suit on the basis of a different set of
facts. Dundon v. U.S., 559 F.Supp. 469, 476 (E.D.N.Y. 1983) (Bramwell, J.) (denying
motion to dismiss because administrative claims allegations about misdiagnosis put
government on notice of claim regarding brain surgery arising out of misdiagnosis).
What constitutes new facts, theories and damages leads to motion practice.
See, e.g., Johnson by Johnson v. U.S., 594 F.Supp. 728 (D.C.N.Y. 1984) (Nickerson,
J.) (claim that alleged molestation of infant did not encompass claim for negligent
supervision and, as such, negligent supervision claim had not been presented), affd,
788 F.2d 845 (2d Cir. 1986), cert. denied, 479 U.S. 914 (1986).
b.
Page | 24
Sum Certain
The administrative tort claim must contain a written sum certain. See 28 C.F.R.
14.2; Adams v. U.S. Dept. of Housing & Urban Dev., 807 F.2d 318 (2d Cir. 1986);
Keene Corp. v. U.S., 700 F.2d 836, 841-42 (2d Cir. 1983), cert. denied, 464 U.S. 864
(1983). The absence of a specified sum is a jurisdictional defect and cannot be waived.
See, e.g., Keene, 700 F.2d at 841; Pinchasow v. U.S., 2006 WL 3370714 (2d Cir.
2006); Rodriguez v. U.S., 2003 WL 21961121 (S.D.N.Y. 2003) (Stein, J.) (dismissing
complaint for lack of subject matter jurisdiction because the plaintiffs failed to include a
sum certain); Pentagen Technologies Intl Ltd. v. U.S., 2002 WL 465308 (S.D.N.Y.
2002) (Stein, J.) (no exhaustion, despite actual notice to government about particulars
of claim via letter, as there was no sum certain); Rogers v. U.S., 568 F.Supp. 894
(E.D.N.Y. (1983) (McLaughlin, J.) (dismissing claim that did not include sum certain).
Certainly, a finite figure contained in a SF95, or equivalent, is a sum certain.
Note, however, that an extraordinary figure that has no apparent relationship to the
damages detailed in the claim may be treated as a nullity. See Lovell v. Unknown
Federal Correctional Officers, 595 F.2d 281 (D.C.Ga. 1979) (gross figure [stated in
claim] . . . which, on the face of the claim, far exceeded any reasonable estimate of
valuation was insufficient as [i]t takes more than this to require the courts to crank up
their elaborate machinery to adjudicate a claim).
Page | 25
Stating that the claimant seeks damages in excess of $X, or $X plus an

amount to be determined may be a problem. Second Circuit courts are inclined to
convert demands of this nature into demands for the dollar amount stated.11 The in
excess of or approximately language is commonly discarded as surplussage. See
Adams, 807 F.2d at 321 (written notice that claimant seeks damages in excess of
$1,000 is a sum certain only for $1,000 of the $4,000,000 claimed as damages);
Keene, 700 F.2d at 842 (written notice that claimant seeks $1,088,135 and an
additional amount yet to be ascertained is a sum certain only for $1,088,135); Dendy v.
U.S., 2009 WL 890618 (N.D.N.Y. 2009) (Scullin, J.) (dismissing injury claims, but
permitting property damage claim for $3,800 to continue as it was less than $58,000
sum set forth in notice); Cooper v. U.S., 498 F.Supp. 116 (W.D.N.Y. 1980) (Elfvin, J.)
($666.43 plus car rental for property damage, pending no fault benefits for personal
injury, and a ? in box for total damages was not a sum certain).
In a rare case, the Second Circuit considered $900 cash plus a list of property to
be acceptable as a sum certain. See Mora v. U.S., 955 F.2d 156 (2d Cir. 1992). In
another rare case, the Southern District of New York held that a claim for interest, with
sufficient information to calculate total sought, was a sum certain despite the omission
of a total.
See Marchese v. U.S., 781 F.Supp. 241 (S.D.N.Y. 1991) (Haight, J.)
(government could calculate total by applying marginal interest rate to stated $100,000
11
In other Circuits, the in excess of language has the effect of voiding the sum certain
stated. The reasoning is that the additional language prevents the Government from
accurately assessing exposure. See, e.g., Estate of Gladden v. U.S., 18 Fed.Appx. 756
(10th Cir. 2001) (In excess of $100,000 does not constitute a sum certain nor do
letters requesting reinstatement, back pay, front pay, etc., thereby administrative filing
requirement not met).
Page | 26
certificates of deposit as the nations chief bank regulator, presumably was competent
to calculate the amount of the plaintiffs interest).
A verbal sum certain is not adequate. See, e.g., Bialowas v. U.S., 443 F.2d 1047
(3d Cir. 1971) (request during phone call for a couple thousand dollars for suffering
was not a sum certain as it was not in writing).
A claim submitted by a parent, individually, and on behalf of a minor child need
not state a separate sum certain for the parent and child. See Locke v. U.S., 351
F.Supp. 185 (D.C. Hawaii, 1972).
Agency permission to submit a sum certain later has been deemed invalid. See
Jordan v. U.S., 333 F.Supp. 987 (E.D. Pa. 1971), affd mem., 474 F.2d 1340 (3d Cir.
1973).
c.
Signed and Dated
An administrative claim should be signed by each claimant, or each claimants

representative. See 28 C.F.R. 14.2(a). An unsigned claim may be rejected by agency.
See Cuello v. Lindsay, 2011 WL 1134711 (E.D.N.Y. 2011) (Matsumoto, J.) (SF95
submitted on May 11, 2009 to BOP Regional Office was rejected as unsigned).
Absence of a signature is probably not jurisdictional. See, e.g., Leaty v. U.S., 748
F.Supp. 268 (D.N.J. 1990); Champagne v. U.S., 573 F.Supp. 488 (E.D. La. 1983) (claim
proceeded even though adult child did not sign).
Page | 27
An attorney may sign for a claimant. See, e.g., Pardy v. U.S., 575 F.Supp. 1078
(D.C. Ill. 1983); Hunter v. U.S., 417 F.Supp. 272 (D.C. Cal. 1976). However, where an
attorney signs, the attorney should consider supplying a document establishing that the
attorney is authorized to sign for the claimant(s).12 In the absence of proof, an action
may be dismissed. See Del Valle v. Veterans Admin, 571 F.Supp. 676 (S.D.N.Y. 1983)
(Carter, J.) (dismissing complaint because there was no proof that attorney was
authorized to present claim on behalf of named claimants or on behalf of decedents
estate).
While there are no decisions within the Second Circuit on this issue, at least one
court has held that a claimants failure to date the administrative claim is a consideration
on a motion for dismissal.
See Hilvac v. U.S., 256 F.Supp. 1274 (N.D. Ill. 1972)
(dismissing action because SF 95 was unsigned, undated and without a sum certain).
C.
APPROPRIATE AGENCY
Written notice of the administrative tort claim must be presented to the

appropriate government agency.
agency.
The FTCA does not define appropriate federal
Generally, this means the agency whose employees acts or omissions
caused the injuries which are the subject of the claim. Lotrionte v. U.S., 560 F.Supp.
41 (S.D.N.Y. 1983) (Pollack, J.), affd, 742 F.2d 1436 (2d Cir. 1983).
12
A form attorney authorization is set forth at page 75-76.
i.
Page | 28
Wrong Agency
If a claim is presented to the wrong agency, the receiving agency has a duty to
do two things: (1) forward the claim forthwith to the appropriate agency, and (2) notify
the claimant of the transfer. See 28 C.F.R. 14.2(b)(1); 55 Motor Ave. Co. v Liberty
Indus. Finishing Corp., 885 F.Supp. 410 (E.D.N.Y. 1994) (Amon, J.) (plaintiff gave
constructive notice of claim to General Services Administration even though claim was
actually filed with Department of Justice). If the receiving agency fails to forward the
claim, the inaction may give rise to a claim for constructive presentment to the
appropriate agency. See Willie v. U.S., 1993 WL 184149 (N.D.N.Y. 1993) (McAvoy, J.)
(citing Bukala v. U.S., 854 F.2d 201 (7th Cir. 1988) (excusing plaintiffs failure to file a
medical malpractice claim with the Veterans Administration because plaintiff timely filed
her claim with the EEOC and, had the EEOC exercised due diligence, the claim would
have been transferred to the correct agency)).
Note, however, that an agencys failure to transfer a claim to the appropriate
agency does not extend the statute of limitations. See Lotrionte v. U.S., 560 F.Supp 41,
43 (S.D.N.Y. 1983) (Pollack, J.) (it would be error to deem a claim presented, for the
purposes of 28 U.S.C. 2401(b), on the day it is received by the improper agency. Such
a reading makes the use of the term appropriate in the statute, superfluous. The
Court must imply at least a minimal period for transfer of the claim to the appropriate
agency. In the present case, since the alleged presentation to the improper agency was
at the very end of the two year period of limitation, allowing time for transfer to the
appropriate agency necessarily defeats plaintiff's claim as time barred).
Page | 29
The fact of transfer does not, in itself, preclude further transfer, return of the claim
to the claimant, or other appropriate disposition of the claim. See 28 C.F.R. 14.2(b)(1).
ii.
Multi-Agency Claims
Where more than one agency is involved, each agency should be notified for
purposes of exhaustion.
See 28 C.F.R. 14.2; see also Williams v. U.S., 2007 WL
951382 (S.D.N.Y. 2007) (Lynch, J.) (requiring plaintiff to notify Army of its alleged
malpractice and Department of Veterans Affairs of its alleged malpractice); Mosseri v.
Fed. Deposit Ins. Corp., 924 F.Supp. 605 (S.D.N.Y. 1996) (Baer, J.) (requiring plaintiff
who claimed injury by both the Federal Deposit Insurance Corporation and the General
Services Administration to satisfy exhaustion requirement with respect to both
agencies). Where multiple agencies are aware of a claim, one agency should notify the
claimant that it is the lead or primary agency for purposes of administrative review.
D.
AGENCY REQUESTS FOR ADDITIONAL INFORMATION
An agency is permitted to request additional information from a claimant in

connection with its investigation of a claim whether or not written notice was
adequate. See 28 U.S.C. 2672.
Where additional information is requested, but is not supplied, some courts have
dismissed the complaint for lack of administrative exhaustion. To date, the Second
Circuit has not determined whether a claimant must comply with an agencys request
that a claim be supplemented. However, district courts have visited the issue. See
Hewitt v. U.S., 2011 WL 2419856 (S.D.N.Y. 2011) (Jones, J.) (plaintiff failed to exhaust
administrative remedies by submitting claim for $25 million in damages for retired
individual and failing to supply medical or economic records); Davis v. U.S., 2008 WL
Page | 30
398342 (S.D.N.Y. 2008) (Katz, J.) (failure to respond to government requests for
substantial evidence to prove the extent of any losses incurred and any injury
sustained was tantamount to failure to exhaust administrative remedies); Sorge v. U.S.,
1997 WL 603451 (S.D.N.Y. 1997) (Owen, J.) (dismissing complaint seeking $5 million
where description of injury in SF95 was vague and claimant failed to provide records
describing injuries and medical costs because it did not provide adequate notice);
Kornbluth v. Savannah, 398 F.Supp. 1266 (Judd, J.) (E.D.N.Y. 1975) (dismissing
complaint because administrative claim was vague and claimant/claimants attorney
failed to respond to requests for additional information over two year period); compare
(State Farm Mut. Auto Ins. Co. v. U.S., 326 F.Supp.2d 407 (E.D.N.Y. 2004) (Garaufis,
J.) (where written notice was adequate, claimants failure to supply requested
information did not give rise to jurisdictional dismissal).
E.
STATUTE OF LIMITATIONS
i.
Accrual
Federal law, not state law, determines the date that an FTCA claim accrues. See
Syms v. Olin Corp., 408 F.3d 95, 107 (2d Cir. 2005).
Generally, a tort claim under the FTCA accrues at the time the plaintiff is injured.
See U.S. v. Kubrick, 444 U.S. 111, 120 (1979); Rosse v. U.S., 2015 WL 2453477
(N.D.N.Y. 2015) (DAgostino, J.) (accrual of claim at time of treatment, not upon onset of
PTSD years later); Barrett v. U.S., 689 F.2d 324, 327 (2d Cir. 1982).
ii.
Page | 31
Diligence-Discovery Rule
a.
Medical Malpractice
In medical malpractice cases, accrual occurs when the plaintiff discovers, or with
reasonable diligence should have discovered the critical facts of both (1) the injury, and
(2) the cause. See Kubrick, 444 U.S. at 120. To put it another way, the emerging rule
in the medical malpractice context is that accrual of the statute of limitations is
postponed until the plaintiff has or with reasonable diligence should have discovered
the critical facts of both his injury and its [iatrogenic] cause. Kronisch v. U.S., 150 F.3d
112, 121 (2d Cir. 1998).
A claim does not accrue when a person has a mere hunch, hint, suspicion, or
rumor of a claim. Kronisch, 150 F.3d at 121. However, the statute of limitations does
not await knowledge of malpractice.
See, e.g., A.E.F. v. U.S., 2014 WL 2453300
(W.D.N.Y. 2014) (claim accrued when grandfather questioned parents in April of 2011
about cause of infants condition, not when plaintiff learned of bilateral hip dysplasia and
dislocated hips in July of 2007); Braver v. U.S., 2013 WL 1952307 (E.D.N.Y. 2013)
(claim accrued when mother had conversation with another mother three months after
birth, not at delivery despite physicians disclosure that delivery was tough, together
with transport to NICU and discussion of abnormal MRI results); A.Q.C. ex rel. Castillo
v. U.S., 656 F.3d 135, 140 (2d Cir. 2011) (plaintiffs mother aware of injury to childs
brachial plexus four months after birth and aware of cause ten months after birth via
conversation with early intervention counselor who suggested that injury was related in
some way to the medical treatment); Valdez ex rel. Donely v. U.S., 518 F.3d 173, 177
Page | 32
(2d Cir. 2008) (while babys injury was evident immediately after birth, there was no
basis for mother to believe that there was a potential doctor-related cause until after
the child was discharged nearly 3 months later); Blair ex rel. Paul v. Culbert, 2009 WL
1294061 (N.D.N.Y. 2009) (Sharpe, J.) (denying motion to dismiss as record was
ambiguous about whether plaintiffs knew about brain injury and iatrogenic cause; issues
of fact about whether providers conversed with plaintiff about brain injury at birth); Lee
v. U.S., 485 F.Supp. 883 (E.D.N.Y. 1980) (Nickerson, J.) (claim did not accrue when
plaintiff was aware of brain injury caused by respiratory distress, but rather when
plaintiff knew or in the exercise of due diligence should reasonably have known that the
alleged acts of the hospital doctors brought about that condition).
Certainly, when a client approaches an attorney to investigate the possibility of a
lawsuit, the claim has accrued. See, e.g., A.Q.C. ex rel Castillo, 656 F.3d at 141 (claim
accrues when client has sufficient knowledge of the possible iatrogenic cause of the
injury to seek legal assistance); Phillips v. Generations Family Health Center, 723 F.3d
144 (2d Cir. 2013).
b.
Non-Medical Malpractice
Application of the discovery rule is more limited in non-medical malpractice

cases. See, e.g., Peck v. U.S., 470 F.Supp. 1003 (S.D.N.Y. 1979) (Stewart, J.) (rule
limited to situations where United States has concealed its acts which the result that
plaintiff was unaware of their existence.
iii.
Page | 33
Continuous Treatment
The continuous treatment doctrine, which tolls a statute of limitations while a

patient is under continuing care from healthcare provider, is available to FTCA
claimants. See, e.g., Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078 (2d Cir. 1988)
(continuous treatment applied against named hospital defendant as claimant was a
patient of the hospital throughout entire period and treated continuously with hospital
employee-physicians); Detor v. U.S., 1997 WL 627554 (N.D.N.Y. 1997) (Pooler, J.)
(continuous treatment applied to claim filed by blind and diabetic patient, who remained
under the care of the VA, because there was no evidence about when patient learned
failure to treat caused injury); compare Camire v. U.S., 535 F.2d 749, 750 (2d Cir. 1976)
(rejecting continuous treatment because it was not by same doctor, or associate of the
same hospital, for the time period at issue).
iv.
Incompetency
Disability due to mental incompetency does not toll the FTCA statute of
limitations. See Kelly v. U.S., 554 F.Supp. 1001 (E.D.N.Y. 1983) (Nickerson, J.). But, a
coma may be enough to do so. See Dundon v. U.S., 559 F.Supp. 469 (E.D.N.Y. 1983)
(Bramwell, J.) (coma tolled statute of limitations due to unique circumstances).
The notion of mental incapacity as a toll was discussed in Mayo v. Federal
Government, 2012 WL 4474589 (S.D.N.Y. 2012). If it is a viable doctrine, the plaintiff
needs to provide a particularized description of how the condition adversely affected
his capacity to function generally or in relationship to her rights. Id. A conclusory and
vague claim . . . is manifestly insufficient to justify any further inquiry into tolling. Id.
v.
Page | 34
Insanity
Insanity does not toll the FTCA statute of limitations. See Harrison v. Lutheran
Medical Center, 2010 WL 4038791 (E.D.N.Y. 2010) (Amon, J.); Hollman v. Dept. of
Health & Human Serv., 501 F.Supp. 255 (S.D.N.Y. 1980) (Pollack, J.).
vi.
Infancy
Infancy does not toll the FTCA statute of limitations. See Teresa T. v. U.S., 181
Fed.Appx. 77 (2d Cir. 2006); Leonhard v. U.S., 633 F.2d 599, 624 (2d Cir. 1980).
vii.
Ignorance About Government Involvement
A plaintiffs lack of knowledge about government involvement normally does not

toll the statute of limitations. See, e.g., McCord v. Brownsville Development Corp.,
2002 WL 31409398 (E.D.N.Y. 20020) (Block, J.) ([a]bsent active concealment, a
plaintiffs ignorance of a persons status as a federal employee will not excuse plaintiffs
failure to file an administrative claim); Van Lieu v. U.S., 542 F.Supp. 862 (N.D.N.Y.
1982) (Munson, J.) (government is under no obligation to notify every potential claimant
of its identity and involvement through its employees in all potential legal actions).
F.
Computation of Time
28 U.S.C. 2401(b) provides that 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
Page | 35
date of mailing, by certified or registered mail, of notice of final denial of the claim by the
agency to which it was presented.13
i.
Two (2) Year Deadline
Courts calculate the two year statute of limitations set forth in 28 U.S.C. 2401(b)
by applying Federal Rule of Procedure 6(a), which: (1) excludes the day of the event
that triggers the time period, (2) counts all intermediate days, including Saturdays,
Sundays and legal holidays, and (3) includes the last day of the time period unless it
falls on a Saturday, Sunday or legal holiday, in which case the deadline is extended to
the next day that is not a Saturday, Sunday or legal holiday.
ii.
Six (6) Month Deadline
Generally, courts calculate the six month statute of limitations set forth in 28
U.S.C. 2401(b) by beginning on the day after the agencys notice of denial is mailed and
running through the day before the same calendar date six months later. See, e.g.,
Crosby v. U.S., 2009 WL 1212268 (W.D.N.Y. 2009) (Arcara, J.) (denial mailed March 7,
2006 meant that limitation period began to run on March 8, 2006 and expired on
September 7, 2006); Hunt v. U.S., 2007 WL 2406912 (N.D.N.Y. 2007) (Sharpe, J.) (6
month limitations period began running on July 19, 2006, the day the denial was
mailed); Santiago v. U.S., 2004 WL 758196 (E.D.N.Y. 2004) (Feuerstein, J.) (the
13
NB: Even through 28 U.S.C. 2401(b) bars a claim unless an action is begun within
six months of denial of the claim, at least one Circuit has held that the United States
must be served within the six (6) month period. See Weisgal v. Smith, 774 F.2d 1277
(4th Cir. 1985) (The language of the Rule requires, in plain and clear terms, that the
notice be given within the limitations period. It includes no reasonable allowance for
service beyond that limitations period. To include time for service as an addition to
the six-month limit in the Rule in an FTCA action would demand a rewriting of the
Rule.).
Page | 36
limitations period begins to run on the day after the March 5, 2002 mailing: March 6,
2002. Plaintiffs contend that if the limitations period began on March 6, 2002, the filing
of the September 6, 2002 complaint was within six-months after the date of mailing and
thus timely. However, the six-month limitations period expired on September 5, 2002.);
Isahack v. U.S., 2001 WL 1456519 (S.D.N.Y. 2001) (Jones, J.) (plaintiffs claim was
denied on October 18, 1999, which meant that deadline to file suit in federal court was
April 18, 2000); Metro. Prop. & Casualty Ins. Co. v. U.S., 1991 WL 37082 (E.D.N.Y.
1991) (Amon, J.) (denial letter was mailed on February 15, 1990, which made filing
deadline August 15, 1990); Campbell v. U.S. Customs Serv., 1988 WL 31856 (S.D.N.Y.
1988) (Sand, J.) (denial occurred on November 24, 1986, which made deadline to file
May 24, 1987); Murray v. U.S. Postal Serv., 569 F.Supp. 794 (N.D.N.Y. 1983) (McCurn,
J.) (the limitations period began to run on the day following the mailing: October 27.
The last day of the first month is therefore November 26, and not November 27, which
is the first day of the second month. Accordingly, the last day of the sixth month is April
26 not April 27 and an action commenced after April 26 is not commenced within
six months after the date of mailing within the meaning of 2401(b)).
Actions commenced more than six months after denial are untimely. See Gist v.
U.S., 2012 WL 140428 (N.D.N.Y. 2012) (McCurn, J.).
iii.
Request For Reconsideration
The six-month period for filing an action in federal district court after denial of an
administrative claim will be tolled if the plaintiff files a timely request for reconsideration.
See, e.g., Glover v. U.S., 111 F.Supp.2d 190, 192 (E.D.N.Y. 2000) (Trager, J.) (six
month period for filing an action in district court after final denial of a claim by the
Page | 37
agency to which it was presented will . . . be tolled by a timely-filed request for

reconsideration by the agency that denied the claim).
A request for reconsideration is just that. A request for explanation of a denial is
a different thing. See Solomon v. U.S., 566 F.Supp. 1033 (E.D.N.Y. 1983) (request for
explanation of denial did not rise to level of request for reconsideration which would toll
6 month SOL).
iv.
Withdrawal of Claim
Where a claimant notifies an agency that s/he is withdrawing the claim and filing
suit, the lawsuit must be commenced within six months of the date of the letter
withdrawing the claim. See Arigo v. U.S., 980 F.2d 1159 (8th Cir. 1992) (suit filed 8
months after claimant wrote DVA that he was withdrawing claim and filing suit in district
court was time-barred, since claimants letter constituted a final denial).
v.
Negotiations
Until there is a final denial, negotiations with an agency may continue indefinitely.
See, e.g., McAllister v. U.S., 925 F.2d 841 (5th Cir. 1991) (no time limit for filing suit if
no final agency action).
vi.
Final Denial
A final settlement offer may be a final denial, but the finality of the settlement
offer must be clear. See Jerves v. U.S., 966 F.2d 517 (9th Cir. 1992) (failure to exhaust
administrative remedies where suit was filed after agency made final settlement offer,
but before it issued a final denial letter, because letter was not of the take-it-or-leave it
variety).
Page | 38
A letter containing a settlement offer that also permits the claimant to treat the
letter as a denial may be a final denial. See Heimila v. U.S., 548 F.Supp. 350 (E.D.N.Y.
1982) (Pratt, J.) (suit was time-barred because not filed within six months of agency
letter that gave plaintiff two choices, e.g., accept the settlement offer or treat the letter
as a denial of claim).
Agency failure to act on a claim does not constitute denial and start six months
running. See, e.g., Stahl v. U.S., 732 F.Supp. 86 (D. Kan. 1990) (government agencys
failure to issue decision within six months after claim is filed cannot serve as notice of a
final denial as contemplated in Section 2401(b)).
G.
AMENDMENTS
A valid administrative tort claim may be amended at any time before final agency
action. See 28 C.F.R. 14.2(c). Whether an amendment is accepted depends upon the
timing and substance of the proposed amendment. Also, an amendment may restart
the 6 month waiting period. See 28 C.F.R. 14.2(c).
H.
EQUITABLE TOLLING
Historically, equitable tolling was available only where a claimant was induced or
tricked by his adversarys conduct into allowing the filing deadline to pass or where
there were extraordinary circumstances. Irwin v. Veterans Admin., 498 U.S. 89, 96
(1990); Holland v. Florida, 130 S.Ct. 2549 (2010); Veltri v. Building Serv., 393 F.3d 318
(2d Cir. 2004) (equitable tolling an extraordinary measure); Doe v. Menefee, 391 F.3d
147 (2d Cir. 2004) (equitable tolling may be invoked provided the plaintiff can establish
Page | 39
that extraordinary circumstances prevented him from filing his claim on time, and that he
acted with reasonable diligence throughout the period he seeks to toll).
Litigation in this area centered around whether a claimant had been induced,
tricked, or misled in some fashion about his or her rights, or whether/how to proceed.
See, e.g., Estate of George v. VA, 2011 WL 5177345 (W.D.N.Y. 2011) (Larimer, J.) (no
toll as no evidence of government misconduct); Genao v. U.S., 2010 WL 3328017
(E.D.N.Y. 2010) (Gershon, J.) (tolling based upon extraordinary circumstances and
attorney diligence); Jackson v. U.S., 488 F.Supp.2d 191 (N.D.N.Y. 2007) (Kahn, J.)
(tolling where VA failed to inform claimant about proper procedure to file SF95); James
v. U.S., 2000 WL 1132035 (S.D.N.Y. 2000) (Jones, J.) (permitting late filing where,
despite requests for information, involuntarily committed pro se plaintiff was not told
about procedure by hospital employees until too late).
Before 1990, federal courts almost uniformly held that the FTCAs two-year and
six-month limitations periods were not subject to equitable tolling (see, e.g., Leonhard v.
U.S., 833 F.2d 599 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981); Lien v. Beehner,
453 F.Supp. 604 (N.D.N.Y. 1978) (Munson, J.); Hoch v. Carter, 242 F.Supp. 863
(S.D.N.Y. 1965) (Herlands, J.)).
The landscape changed in 1990, when the Supreme Court addressed equitable
tolling in Irwin v. Department of Veterans Affairs (498 U.S. 89 (1990)). At issue in Irwin
was whether the plaintiff could maintain a district court action for violation of Title VII of
the Civil Rights Act of 1984 when he did not commence suit within 30 days after the
issuance of a right-to-sue letter by Equal Employment Opportunity Commission
(EEOC). Specifically, the plaintiff alleged that, while his attorney received the letter on
Page | 40
March 24, 1987, he did not receive the EEOCs right-to-sue letter until he returned from
travel outside of the country on April 10, 1987. He argued that the action was viable
because he commenced suit within 30 days of April 10, 1987 and, moreover, that any
error on his part may be excused under equitable tolling principles. The district court
dismissed the complaint and the Court of Appeals for the Fifth Circuit affirmed (874 F.2d
1092 (1989)).
The Supreme Court granted certiorari to determine when the 30 day period under
2000e-16(c) begins to run and to resolve a Circuit Court conflict over whether late-filed
claims are jurisdictionally barred. The Court noted that [t]ime requirements in lawsuits
between private litigants are customarily subject to equitable tolling, and that we think
that making the rule of equitable tolling applicable to suits against the Government, in
the same way that it is applicable to private suits, amounts to little, if any, broadening of
the congressional waiver of sovereign immunity. While the Court concluded that the
plaintiffs claim was properly dismissed (due to a garden variety claim of excusable
neglect) it held that the same rebuttable presumption of equitable tolling applicable to
suits against private defendants should also apply to suits against the United States.
Congress, of course, may provide otherwise if it wishes to do so.
After Irwin, most courts held that FTCA limitations periods are not jurisdictional
and could be equitably tolled (see, e.g., Kronisch v. U.S., 150 F.3d 12 (2d Cir. 1998);
Hyatt v. U.S., 968 F.Supp. 96 (E.D.N.Y. 1997) (Johnson, J.); Long v. Card, 882 F.Supp.
1285 (E.D.N.Y. 1995) (Seybert, J.)).
Page | 41
Enter the Supreme Court decisions in United States v. Brockamp (519 U.S. 347
(1997)) and United States v. Beggerly (524 U.S. 38 (1998)), which cast doubt on the
availability of equitable tolling in FTCA cases. In Brockamp, the Court rejected the
plaintiffs reliance upon Irwin, and held that Congress did not intend the equitable tolling
doctrine to apply to 6511 of the Internal Revenue Code of 1986. In Beggerly, the
Court also rejected the plaintiffs reliance upon Irwin, and held that equitable tolling was
not available in a suit brought pursuant to the Quiet Title Act. Following Brockamp and
Beggerly, courts took a number of approaches to equitable tolling. Some appear to
have altogether ignored the decisions, while others distinguished the FTCA from the
statutes at issue in Brockamp and Beggerly, or crafted case-specific justifications to
keep equitable tolling alive. Regardless, doubt remained.
On April 22, 2015, the Supreme Court issued a seminal decision in United States
v. Kwai Fun Wong (575 U.S. __ (2015)). In sum, equitable tolling is alive and well in
FTCA cases.
Two cases were before the Court in Wong. In the first (U.S. v. Wong), the
plaintiff alleged that she was falsely imprisoned for five days by the Immigration and
Naturalization Service (INS). Consistent with the FTCA, she presented a claim to the
INS within two years of the alleged wrongdoing. INS denied the claim on December 3,
2001. Under the FTCA, Wong had until June 3, 2002 to bring her tort claim in federal
court. Before INS denied her claim, the plaintiff filed suit in district court asserting
various non-FTCA claims against the Government arising out of the same misconduct.
Page | 42
When her claim was denied, the plaintiff moved in mid-November of 2001 to amend the
complaint to include her tort claim. On April 5, 2002, a Magistrate Judge recommended
granting leave to amend, but the district court did not adopt the Magistrates
recommendation until June 25, 2012 twenty-two (22) days after expiration of the
FTCAs six-month deadline. The Government moved to dismiss the tort claim. Initially,
the district court rejected the motion, recognizing equitable tolling for the time between
the Magistrates recommendation and the district courts order. Several years later, the
Government moved for reconsideration arguing that the 2401(b) six-month time-period
was jurisdictional and, in turn, not subject to equitable tolling.
The district court
dismissed the plaintiffs claim, but the Ninth Circuit heard the case en banc to address
an intra-circuit conflict on the issue. The en banc court held that the six-month time limit
was not jurisdictional and that equitable tolling is available (see Wong v. Beebe, 732
F.3d 1030 (2013)).
In the second case (U.S. v. June), the plaintiff filed a wrongful death action
against the State of Arizona for the 2005 death of Andrew Booth, who was killed in a
collision that occurred after his car crossed through a cable median barrier. Years into
the state court litigation, the plaintiff learned that the Federal Highway Administration
(FHWA) had approved installation of the barrier despite knowledge that the barrier had
not been crash tested. In 2010, the plaintiff presented a tort claim to the FHWA. After
the claim was denied, the plaintiff filed suit in district court and argued that equitable
tolling should apply because the Government concealed the absence of crash testing.
The district court dismissed the action as untimely under the FTCAs two-year bar, but
the Ninth Circuit reversed in light of its recent decision in Wong v. Beebe.
Page | 43
The Supreme Court granted certiorari in both cases (see 573 U.S. __ (2014)), to
resolve a circuit split about whether courts may equitably toll 2401(b)s two-year and
six-month time limits (compare, e.g., In re FEMA Trailer Formaldehyde Prods. Liability
Litigation, 646 F.3d 185 (5th Cir. 2011) (tolling unavailable), with Arteaga v. U.S., 711
F.3d 828 (7th Cir. 2013 (tolling available).
The Courts analysis in Wong began with a review of Irwin including, specifically,
the notion of the rebuttable presumption of equitable tolling. One way to meet that
burden and the way the Government pursued here is to show that Congress made
the time bar at issue jurisdictional. Where that is so, a litigants failure to comply with
the bar deprives a court of all authority to hear a case. Hence, a court must enforce the
limitation even if the other party has waived any timeliness objection . . . [a]nd, more
crucially here, a court must do so even if equitable considerations would support
extending the prescribed time period.
Noting that the Government must clear a high bar to establish that a statute of
limitations is jurisdictional, and that most time bars are nonjursdictional, the Court
held that in order for a deadline to be jurisdictional, Congress must do something
special, beyond setting a exception-free deadline, to tag a statute of limitations as
jurisdictional and so prohibit the court from tolling it.
In the case of the FTCA,
Congress did nothing of that kind.
Page | 44
Further, 2401(b)s text speaks only to a claims timeliness, not to a courts

power. It states that a tort claim against the United States shall be forever barred
unless it is presented to the agency within two years . . . or unless action is begun within
six months of the agencys denial of the claim. That is mundane statute-of-limitations
language, saying only what every time bar, by definition, must: that after a certain time a
claim is barred. The language is mandatory shall be barred but (as just noted) this
is true of most such statutes, and we have consistently found it of no consequence.
In closing, Justice Kagan noted [a]nd so we wind up back where we started, with
Irwins general rule that equitable tolling is available in suits against the Government.
The justification the Government offers for departing form that principle fails: Section
2401(b) is not a jurisdictional requirement. The time limits in the FTCA are just time
limits, nothing more. Even though they govern litigation against the Government, a
court can toll them on equitable grounds.
A dissent authored by Justice Alito, and joined by Chief Justice Roberts, and
Justices Scalia and Thomas, noted that the FTCAs filing deadlines are jurisdictional
because the Act states that untimely claims shall be forever barred and this is not
generally understood to mean should be allowed sometimes.
Page | 45
Despite the Wong decision, counsel should review A.Q.C. ex rel. Castillo v. U.S.,
656 F.3d 135 (2d Cir. 2011), as it appears to place any attorney with any FTCA
experience on constructive notice of the potential for a federal government actor and
requires counsel, as part of standard diligence, to take affirmative steps to identify the
federal actor. See A.Q.C., 656 F.3d at 145 (it is hard to understand how any lawyer . . .
would not investigate the federal nature of potential defendants as part of standard due
diligence in every medical malpractice case).
Fortunately, the apparently unforgiving holding in A.Q.C. was clarified and
softened by the Second Circuit in Phillips v. Generations Family Medical Center, 723
F.3d 144 (2d Cir. 2013) ([a]lthough this statement, particularly given that it refers to any
lawyer and every malpractice case, might at first blush appear to require that
malpractice lawyers always call the federal hotline or search the HHS database, we do
not agree that A.Q.C. established such a per se rule. As an initial matter, A.Q.C. did not
purport to establish a blanket rule of law but instead merely reviewed the district courts
decision for abuse of discretion and was premised upon certain facts).
II.
THE FEDERAL ACTION

A.
ELEMENTS OF COMPLAINT
A FTCA complaint should contain customary details about the parties and claims
for purposes of jurisdiction, venue and stating a cause of action.
In addition, the
complaint must contain an allegation about exhaustion of administrative remedies. See,

e.g., Altman v. Connally, 456 F.2d 1114 (2d Cir. 1972) (compliant deficient because it
failed to allege the presentation of the claim to the appropriate federal agency and a
final disposition of the claim by that agency as required by 28 U.S.C. 2675).
B.
Page | 46
SERVICE
Rule 4(i)(1) of the Federal Rules of Civil Procedure requires that a copy of a filed
summons and complaint be served upon (1) the United States Attorney General, and
(2) the United States Attorney for the district in which the action is brought.
Service upon the Attorney General is accomplished by mailing the summons and
complaint via registered/certified mail to Washington, D.C.
Service upon the
appropriate United States Attorney is accomplished by (1) serving an Assistant United

States Attorney, (2) serving clerical staff designated in writing with the court, or (3) by
mailing the summons and complaint via registered/certified mail.
Service must be made on both the United States Attorney and the Attorney
General. This is a jurisdictional requirement. Further, the 120 day deadline to complete
service is strictly enforced.
See McGregor v. U.S., 933 F.2d 156 (2d Cir. 1991)
(affirming dismissal of complaint where widow failed to serve Attorney General within
120 days after filing the complaint despite timely service upon United States Attorney
and a request for additional time to serve Attorney General because delay was
without good cause).
C.
SUBSTANTIVE LAW
A tort is defined by the law of the state where the tort occurred. See 28 U.S.C.
2674.
Damages in FTCA actions are determined by the law of the state in which the
tort occurred. Moe v. U.S., 2010 WL 5072108 (W.D.N.Y. 2010) (Arcara, J.).
If state law does not permit recovery under the circumstances, the United States
will not be liable.
D.
Page | 47
PROPER DEFENDANT
The United States is the only proper defendant in an FTCA action.
If an
individual employee or specific agency is named, the United States shall be substituted
as the sole defendant. See 28 U.S.C. 2679.
E.
SUPPLEMENTAL JURISDICTION
Under 28 U.S.C. 1367(a), district courts have supplemental jurisdiction over all
other claims that are so related to claims within such original jurisdiction that they form
part of the same case or controversy under Article III of the United States Constitution.
While a court may, in its discretion, exercise supplemental jurisdiction over state
law claims, even where it has dismissed all claims over which it had original jurisdiction
(see Cushing v. Moore, 970 F.2d 1103 (2d Cir. 1992)), a court cannot exercise
supplemental jurisdiction unless there is first a proper basis for original federal
jurisdiction. Nowack v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d
Cir. 1996).
F.
SCOPE OF EMPLOYMENT
For there to be FTCA liability, the negligent actor must be a federal employee
acting within the course and scope of his or her employment.
See 28 U.S.C.
1346(b)(1), 2675, 2672 and 2679. The federal government has no liability for the acts
of omission and/or commission of the proverbial rogue agent, or those of independent
contractors. See 28 U.S.C. 2671.
Page | 48
Whether a given individual is an employee of the United States is determined by

federal law. The test to determine if an individual is an employee of the United States is
the governments right to control the details of the day-to-day performance of duty of
the employee. See Logue v. U.S., 412 U.S. 521 (1973) (strict control test); Roditis v.
U.S., 122 F.3d 108 (2d Cir. 1997) (Thus, as a general rule, sovereign immunity
precludes suits against the United States for injuries caused by its independent
contractors.); Coalts-Young v. Glens Falls Hosp., 2014 WL 6474855 (N.D.N.Y. 2014
(Sharpe, J.) (physician who provided coverage at Glens Falls Hospital was an employee
of the government; physician was employed by Government on days at issue, was
scheduled by Government to work, and was paid by the Government for the shifts);
Haskin v. U.S., 2013 WL 4761110 (E.D.N.Y. 2013) (explaining that government cannot
be held liable under the FTCA for negligent actions of an independent contractor);
Ramos v. Bronx-Lebanon Hospital, 2013 WL 93510 (S.D.N.Y. 2013) (despite nurses
employment by Bronx Lebanon Integrated Services System and Bronx Lebanon
Hospital Center and absence of direct contract between them and government, they
were employees of Public Health Service as employees of subgrantee of federal funds
under 42 U.S.C. 254b); Johnson v. U.S., 2012 WL 2921542 (N.D.N.Y. 2012) (stating
rule); Rosenblatt v. St. Johns Episcopal Hosp., 2012 WL 294518 (E.D.N.Y. 2012) (The
FTCA defines employee of the Government as officers or employees of any federal
agency . . . and persons acting on behalf of a federal agency in an official capacity,
temporarily or permanently in the service of the United States . . . .); Grace v. U.S., 754
F.Supp.2d 585 (W.D.N.Y. 2010) (Siragusa, J.) (ophthalmologist providing care at
Page | 49
Rochester VA clinic under a contract between University of Rochester and VA was an

independent contractor).
Whether a given individual was acting within the scope of his or her federal
employment is an issue of state tort law. See Williams v. U.S., 350 U.S., 857 (1955);
James v. U.S., 2014 WL 1055460 (W.D.N.Y. 2014) (second year medical resident who
was generally obligated as a VA hospital employee was not in scope of employment
on way from lecture to optional dinner at Anchor Bar because on day of accident she
was not on-call, did not provide care to patients, and did not review charts).
The United States waiver of immunity under the FTCA is to be strictly construed
in favor of the government. See, e.g., Liranzo v. U.S., 690 F.3d 78 (2d Cir. 2012).
G. BARS TO RECOVERY
i.
Discretionary Function and Due Care
Government policy decisions cannot be subjected to tort suit.
The FTCA
provides that no claims based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute or regulation, whether or
not such a statute or regulation be valid, or based based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government, whether or not the
discretion involved be abused. 28 U.S.C. 2680(a).
The purpose of the discretionary function exception is to prevent judicial second
guessing of legislative and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort. Berghoff v. U.S., 737 F.Supp.
199, 202 (S.D.N.Y. 1989) (Mukasey, J.) (quoting U.S. v. S.A. Empresa de Viacao Aerea
Page | 50
Rio Grandense, 467 U.S., 797 (1984)); see Reichart v. U.S., 408 Fed.Appx. 441 (2d Cir.
2011); Yesina v. U.S., 911 F.Supp.2d 217 (E.D.N.Y. 2012) (supervision of independent
contractor and property involved was a discretionary function).
ii.
FECA
FECA provides compensation where a federal employee is killed or injured while

in the performance of . . . duty. 5 U.S.C. 8101-8151 (1994). United States employees
are not proper claimants when covered by the Federal Employees Compensation Act
(FECA). See Mathirampuzha v. Potter, 548 F.3d 70 (2d Cir. 2008); Doe v. U.S., 914
F.Supp. 945 (W.D.N.Y. 1996) (Curtin, J.).
iii.
Feres
United States service members are not proper claimants for personal injury or
death that are incident to service. See Feres v. U.S., 340 U.S. 135 (1950). The Feres
Doctrine extends to derivative spousal claims. See In re Agent Orange Product Liability
Litigation, 580 F.Supp. 1242 (E.D.N.Y. 1984) (Weinstein, J.).
iv.
Intentional Tort Claims
As a general rule, intentional and constitutional tort claims are not permitted
under the FTCA. See, e.g., Mortise v. U.S., 102 F.3d 693 (2d Cir. 1996) (no assault
and battery); Koester v. Lanfranchi, 288 Fed.Appx. 764 (2d Cir. 2008) (no false arrest
and imprisonment); Allamby v. U.S., 207 Fed.Appx. 7 (2d Cir. 2006) (no malicious
prosecution); Stewart v. U.S., 1996 WL 387218 (2d Cir. 1996)(no abuse of process); Hill
v. Donoghue, 2011 WL 3919388 (E.D.N.Y. 2011) (Seybert, J.) (no libel/slander).
Page | 51
While it was somewhat uncertain until mid-2013, it is now clear that a cause of
action exists against the government for medical battery (i.e., lack of informed consent).
See Levin v. U.S., 133 S.Ct. 1224 (2013) (United States could be liable for surgeons
performance of cataract surgery after patient withdrew consent because FTCA
intentional tort exception was inapplicable). If plaintiffs intend to pursue a claim for lack
of informed consent, it should be clear from the content of the administrative notice
document or it may be dismissed.
See, e.g., Soriano v. U.S., 2013 WL 3316132
(S.D.N.Y. 2013) (informed consent claim was viable as sufficient facts were alleged in
claim to put government on notice).
v.
Strict Liability
The FTCA includes only liability for negligent acts and excludes absolute (i.e.,
strict) liability. See, e.g., Dalehite v. U.S., 346 U.S. 15 (1953); McCutcheon v. U.S.,
1996 WL 607083 (W.D.N.Y. 1996) (Elfvin, J.) (New Yorks non-delegable duty for
landlord to provide safe ingress and egress is strict liability statute that is inapplicable to
HUD).
H.
PROSECUTION
Failure to prosecute a claim may result in dismissal.
Factors the court may
consider include: (1) duration of the delay, (2) notice of potential dismissal, (3) prejudice
to the defendant, (4) balance between calendar congestion and due process rights, and
(5) consideration of lesser sanctions. See, e.g., Ransom v. U.S., 2011 WL 2893067
(N.D.N.Y. 2011) (DAgostino, J.) (weighing factors and granting governments motion for
summary judgment).
I.
Page | 52
AVAILABLE DAMAGES
Generally, relief is limited to monetary damages available under relevant state

law. Equitable relief is unavailable. Further, the United States is not liable for punitive
damages or prejudgment interest.
See 28 U.S.C. 2674.
Post-judgment interest is
permitted.
The amount of recovery cannot exceed the amount claimed in the administrative
claim unless the increased amount is based upon newly discovered evidence not
reasonably discoverable at the time of presenting the claim to the federal agency, or
upon allegation and proof of intervening facts, relating to the amount of the claim. 28
U.S.C. 2675(b); see Malmberg v. U.S., 2012 WL 4953091 (N.D.N.Y. 2012) (no
modification of ad damnum clause from $6,000,000 to $25,000,000 despite progression
of plaintiffs condition to paralysis involving all four extremities after claim was presented
because he has failed to demonstrate that this worst case scenario was not reasonably
foreseeable at the time that he filed his administrative claim); McFarlane v. U.S., 684
F.Supp. 780 (E.D.N.Y. 1988) (Dearie, J.) (cannot raise ad damnum where increase
based upon medical diagnosis made prior to original claim); compare Lane v. U.S.,
1996 WL 426312 (S.D.N.Y. 1996) (Francis, J.) (permitting amendment of ad damnum
from $1 million to $5 million as results of future surgery were unknown, even though
claimant knew future surgery was inevitable).
The government receives the benefit of state tort reform statutes that place
monetary limitations on a recovery. See Ingraham v. U.S., 808 F.2d 1075 (5th Cir.
1987) (monetary limitations on damages should be pleaded as an affirmative defense).
III.
Page | 53
RESOLUTION
A.
Settlement Authority
An agency must seek DOJ approval for settlements above statutory authority.14
Note, however, (1) that DOJ will not be consulted absent a recommendation from an
agency, and (2) an agency is not required to make a recommendation. Within the DOJ,
the Torts Branch receives agency recommendations for settlement above statutory
authority levels. The Torts Branch Director has $1,000,000 in settlement authority.
Generally, a United States Attorney has $1,000,000 in settlement authority. See
28 C.F.R. 0.168(d)(2). An Assistant Attorney General, Civil Division, has $2,000,000 in
settlement authority.
See 28 C.F.R. 0.172(b) and 0.160.
An Associate/Reporting
Attorney General has unlimited settlement authority. See 28 C.F.R. 0.161.

B.
Release
A settlement cannot be set aside except upon a showing of fraud, bad faith, or
willful effort to mislead, or lack of meeting of the minds.
See Barrett v. U.S., 622
F.Supp. 574 (S.D.N.Y. 1985) (Motley, J.), further proceedings, 660 F.Supp. 1291
(S.D.N.Y. 1987) (1955 release set aside as role of U.S. in tort was concealed and U.S.
was not a party to the action).
14
Agencies have different levels of settlement authority. The default level of authority is
$25,000.00. However, pursuant to 28 U.S.C. 2672, the Attorney General is authorized
to create higher levels of authority on an agency-by-agency basis. The Army, Navy, Air
Force, Postmaster General, Secretary of Defense, Department of Veterans Affairs, and
Department of Health and Human Services each have settlement authority of
$200,000.00. The Department of Transportation has $100,000.00 in settlement
authority. The Department of Homeland Security has $50,000.00 in settlement
authority. See 28 C.F.R., Appendix to Part 14.
Page | 54
C. Infant Claims
Resolution of an infants administrative claim is invalid in the absence of state
court approval of the settlement. See, e.g., Reo v. U.S., 98 F.3d 73 (3d. Cir. 1996)
(settlement of administrative claim of 3 year old for $2,500 by USPS was not binding, as
it was not approved by New Jersey court).
D. Attorneys Fees
Attorneys fees are limited to 20% of an administrative settlement and 25% of a
settlement/award from a lawsuit. See 28 U.S.C. 2678; see also Gerow v. U.S., 1997
WL 538910 (N.D.N.Y. 1997) (Pooler, J.) (notwithstanding statutory fee of 25%, district
court has authority to fix attorneys fees to safeguard the interests of an infant).
Generally, attorneys are paid by separate check (i.e., separate from the claimants
check).
Any attorney who charges, demands, receives, or collects for services rendered
in connection with a FTCA claim any amount in excess of that allowed under 28 U.S.C.
2678 shall be fined not more than $2,000 or imprisoned not more than one year, or
both.
III.
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FTCA STATUTES AND REGULATIONS

A.
FTCA Statutes
28 U.S.C. 1346. United States as defendant

(b)(1) Subject to the provisions of chapter 171 of this title, the district courts, together
with the United States District Court for the District of the Canal Zone and the District
Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims
against the United States, for money damages, accruing on and after January 1, 1945,
for injury or loss of property, or personal injury or death 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.
28 U.S.C. 1402. United States as defendant
(b) Any civil action on a tort claim against the United States under subsection (b) of
section 1346 of this title may be prosecuted only in the judicial district where the plaintiff
resides or wherein the act or omission complained of occurred.
28 U.S.C. 2401. Time for commencing action against United States
(b) 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. 2402. Jury trial in actions against United States
Subject to chapter 179 of this title, any action against the United States under section
1346 shall be tried by the court without a jury, except that any action against the United
States under section 1346(a)(1) shall, at the request of either party to such action, be
tried by the court with a jury.
28 U.S.C. 2671. Definitions

As used in this chapter and sections 1346(b) and 2401(b) of this title, the term Federal
agency includes the executive departments, the judicial and legislative branches, the
military departments, independent establishments of the United States, and
corporations primarily acting as instrumentalities or agencies of the United States, but
does not include any contractor with the United States.
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Employee of the government includes (1) officers or employees of any federal agency,
members of the military or naval forces of the United States, members of the National
Guard while engaged in training or duty under section 115, 316, 502, 503, 504, or 505
of title 32, and persons acting on behalf of a federal agency in an official capacity,
temporarily or permanently in the service of the United States, whether with or without
compensation, and (2) any officer or employee of a Federal public defender
organization, except when such officer or employee performs professional services in
the course of providing representation under section 3006A of title 18.
Acting within the scope of his office or employment, in the case of a member of the
military or naval forces of the United States or a member of the National Guard as
defined in section 101(3) of title 32, means acting in line of duty.
28 U.S.C. 2672. Administrative adjustment of claims
The head of each Federal agency or his designee, in accordance with regulations
prescribed by the Attorney General, may consider, ascertain, adjust, determine,
compromise, and settle any claim for money damages against the United States for
injury or loss of property or personal injury or death caused by the negligent or wrongful
act or omission of any employee of the agency 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: Provided, That any award, compromise, or settlement in excess of
$25,000 shall be effected only with the prior written approval of the Attorney General or
his designee. Notwithstanding the proviso contained in the preceding sentence, any
award, compromise, or settlement may be effected without the prior written approval of
the Attorney General or his or her designee, to the extent that the Attorney General
delegates to the head of the agency the authority to make such award, compromise, or
settlement. Such delegations may not exceed the authority delegated by the Attorney
General to the United States attorneys to settle claims for money damages against the
United States. Each Federal agency may use arbitration, or other alternative means of
dispute resolution under the provisions of subchapter IV of chapter 5 of title 5, to settle
any tort claim against the United States, to the extent of the agency's authority to award,
compromise, or settle such claim without the prior written approval of the Attorney
General or his or her designee.
Subject to the provisions of this title relating to civil actions on tort claims against the
United States, any such award, compromise, settlement, or determination shall be final
and conclusive on all officers of the Government, except when procured by means of
fraud.
Any award, compromise, or settlement in an amount of $2,500 or less made pursuant to
this section shall be paid by the head of the Federal agency concerned out of
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appropriations available to that agency. Payment of any award, compromise, or

settlement in an amount in excess of $2,500 made pursuant to this section or made by
the Attorney General in any amount pursuant to section 2677 of this title shall be paid in
a manner similar to judgments and compromises in like causes and appropriations or
funds available for the payment of such judgments and compromises are hereby made
available for the payment of awards, compromises, or settlements under this chapter.
The acceptance by the claimant of any such award, compromise, or settlement shall be
final and conclusive on the claimant, and shall constitute a complete release of any
claim against the United States and against the employee of the government whose act
or omission gave rise to the claim, by reason of the same subject matter.
28 U.S.C. 2673. Reports to Congress
The head of each federal agency shall report annually to Congress all claims paid by it
under section 2672 of this title, stating the name of each claimant, the amount claimed,
the amount awarded, and a brief description of the claim.
28 U.S.C. 2674. Liability of United States
The United States shall be liable, respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a private individual under like
circumstances, but shall not be liable for interest prior to judgment or for punitive
damages.
If, however, in any case wherein death was caused, the law of the place where the act
or omission complained of occurred provides, or has been construed to provide, for
damages only punitive in nature, the United States shall be liable for actual or
compensatory damages, measured by the pecuniary injuries resulting from such death
to the persons respectively, for whose benefit the action was brought, in lieu thereof.
With respect to any claim under this chapter, the United States shall be entitled to
assert any defense based upon judicial or legislative immunity which otherwise would
have been available to the employee of the United States whose act or omission gave
rise to the claim, as well as any other defenses to which the United States is entitled.
With respect to any claim to which this section applies, the Tennessee Valley Authority
shall be entitled to assert any defense which otherwise would have been available to
the employee based upon judicial or legislative immunity, which otherwise would have
been available to the employee of the Tennessee Valley Authority whose act or
omission gave rise to the claim as well as any other defenses to which the Tennessee
Valley Authority is entitled under this chapter.
28 U.S.C. 2675. Disposition by federal agency as prerequisite; evidence
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(a) An action shall not be instituted upon a claim against the United States for money
damages for injury or loss of property or personal injury or death 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, unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or registered mail. The
failure of an agency to make final disposition of a claim within six months after it is filed
shall, at the option of the claimant any time thereafter, be deemed a final denial of the
claim for purposes of this section. The provisions of this subsection shall not apply to
such claims as may be asserted under the Federal Rules of Civil Procedure by third
party complaint, cross-claim, or counterclaim.
(b) Action under this section shall not be instituted for any sum in excess of the amount
of the claim presented to the federal agency, except where the increased amount is
based upon newly discovered evidence not reasonably discoverable at the time of
presenting the claim to the federal agency, or upon allegation and proof of intervening
facts, relating to the amount of the claim.
(c) Disposition of any claim by the Attorney General or other head of a federal agency
shall not be competent evidence of liability or amount of damages.
28 U.S.C. 2676. Judgment as bar
The judgment in an action under section 1346(b) of this title shall constitute a complete
bar to any action by the claimant, by reason of the same subject matter, against the
employee of the government whose act or omission gave rise to the claim.
28 U.S.C. 2677. Compromise
The Attorney General or his designee may arbitrate, compromise, or settle any claim
cognizable under section 1346(b) of this title, after the commencement of an action
thereon.
28 U.S.C. 2678. Attorney fees; penalty

No attorney shall charge, demand, receive, or collect for services rendered, fees in
excess of 25 per centum of any judgment rendered pursuant to section 1346(b) of this
title or any settlement made pursuant to section 2677 of this title, or in excess of 20 per
centum of any award, compromise, or settlement made pursuant to section 2672 of this
title.
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Any attorney who charges, demands, receives, or collects for services rendered in
connection with such claim any amount in excess of that allowed under this section, if
recovery be had, shall be fined not more than $2,000 or imprisoned not more than one
year, or both.
28 U.S.C. 2679. Exclusiveness of remedy
(a) The authority of any federal agency to sue and be sued in its own name shall not be
construed to authorize suits against such federal agency on claims which are
cognizable under section 1346(b) of this title, and the remedies provided by this title in
such cases shall be exclusive.
(b)(1) The remedy against the United States provided by sections 1346(b) and 2672 of
this title for injury or loss of property, or personal injury or death arising or resulting from
the negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment is exclusive of any other civil action
or proceeding for money damages by reason of the same subject matter against the
employee whose act or omission gave rise to the claim or against the estate of such
employee. Any other civil action or proceeding for money damages arising out of or
relating to the same subject matter against the employee or the employee's estate is
precluded without regard to when the act or omission occurred.
(2) Paragraph (1) does not extend or apply to a civil action against an employee
of the Government
(A) which is brought for a violation of the Constitution of the United States,
or
(B) which is brought for a violation of a statute of the United States under
which such action against an individual is otherwise authorized.
(c) The Attorney General shall defend any civil action or proceeding brought in any court
against any employee of the Government or his estate for any such damage or injury.
The employee against whom such civil action or proceeding is brought shall deliver
within such time after date of service or knowledge of service as determined by the
Attorney General, all process served upon him or an attested true copy thereof to his
immediate superior or to whomever was designated by the head of his department to
receive such papers and such person shall promptly furnish copies of the pleadings and
process therein to the United States attorney for the district embracing the place
wherein the proceeding is brought, to the Attorney General, and to the head of his
employing Federal agency.
(d)(1) Upon certification by the Attorney General that the defendant employee was
acting within the scope of his office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding commenced upon such claim in a
United States district court shall be deemed an action against the United States under
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the provisions of this title and all references thereto, and the United States shall be
substituted as the party defendant.
(2) Upon certification by the Attorney General that the defendant employee was
acting within the scope of his office or employment at the time of the incident out
of which the claim arose, any civil action or proceeding commenced upon such
claim in a State court shall be removed without bond at any time before trial by
the Attorney General to the district court of the United States for the district and
division embracing the place in which the action or proceeding is pending. Such
action or proceeding shall be deemed to be an action or proceeding brought
against the United States under the provisions of this title and all references
thereto, and the United States shall be substituted as the party defendant. This
certification of the Attorney General shall conclusively establish scope of office or
employment for purposes of removal.
(3) In the event that the Attorney General has refused to certify scope of office or
employment under this section, the employee may at any time before trial petition
the court to find and certify that the employee was acting within the scope of his
office or employment. Upon such certification by the court, such action or
proceeding shall be deemed to be an action or proceeding brought against the
United States under the provisions of this title and all references thereto, and the
United States shall be substituted as the party defendant. A copy of the petition
shall be served upon the United States in accordance with the provisions of Rule
4(d)(4) of the Federal Rules of Civil Procedure. In the event the petition is filed in
a civil action or proceeding pending in a State court, the action or proceeding
may be removed without bond by the Attorney General to the district court of the
United States for the district and division embracing the place in which it is
pending. If, in considering the petition, the district court determines that the
employee was not acting within the scope of his office or employment, the action
or proceeding shall be remanded to the State court.
(4) Upon certification, any action or proceeding subject to paragraph (1), (2), or
(3) shall proceed in the same manner as any action against the United States
filed pursuant to section 1346(b) of this title and shall be subject to the limitations
and exceptions applicable to those actions.
(5) Whenever an action or proceeding in which the United States is substituted

as the party defendant under this subsection is dismissed for failure first to
present a claim pursuant to section 2675(a) of this title, such a claim shall be
deemed to be timely presented under section 2401(b) of this title if
(A) the claim would have been timely had it been filed on the date the
underlying civil action was commenced, and
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(B) the claim is presented to the appropriate Federal agency within 60

days after dismissal of the civil action.
(e) The Attorney General may compromise or settle any claim asserted in such civil
action or proceeding in the manner provided in section 2677, and with the same effect.
28 U.S.C. 2680. Exceptions
The provisions of this chapter and section 1346(b) of this title shall not apply to
(a) Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not such
statute or regulation be valid, or based upon the exercise or performance or the failure
to exercise or perform a discretionary function or duty on the part of a federal agency or
an employee of the Government, whether or not the discretion involved be abused.
(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or
postal matter.
(c) Any claim arising in respect of the assessment or collection of any tax or customs
duty, or the detention of any goods, merchandise, or other property by any officer of
customs or excise or any other law enforcement officer, except that the provisions of
this chapter and section 1346(b) of this title apply to any claim based on injury or loss of
goods, merchandise, or other property, while in the possession of any officer of customs
or excise or any other law enforcement officer, if
(1) the property was seized for the purpose of forfeiture under any provision of
Federal law providing for the forfeiture of property other than as a sentence
imposed upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or mitigated (if the property was
subject to forfeiture); and
(4) the claimant was not convicted of a crime for which the interest of the
claimant in the property was subject to forfeiture under a Federal criminal
forfeiture law.
(d) Any claim for which a remedy is provided by chapter 309 or 311 of title 46 relating to
claims or suits in admiralty against the United States.
(e) Any claim arising out of an act or omission of any employee of the Government in
administering the provisions of sections 1-31 of Title 50, Appendix.
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(f) Any claim for damages caused by the imposition or establishment of a quarantine by
the United States.
[(g) Repealed. Sept. 26, 1950, c. 1049, 13(5), 64 Stat. 1043.]
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference
with contract rights: Provided, That, with regard to acts or omissions of investigative or
law enforcement officers of the United States Government, the provisions of this chapter
and section 1346(b) of this title shall apply to any claim arising, on or after the date of
the enactment of this proviso, out of assault, battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution. For the purpose of this subsection,
investigative or law enforcement officer means any officer of the United States who is
empowered by law to execute searches, to seize evidence, or to make arrests for
violations of Federal law.
(i) Any claim for damages caused by the fiscal operations of the Treasury or by the
regulation of the monetary system.
(j) Any claim arising out of the combatant activities of the military or naval forces, or the
Coast Guard, during time of war.
(k) Any claim arising in a foreign country.
(l) Any claim arising from the activities of the Tennessee Valley Authority.
(m) Any claim arising from the activities of the Panama Canal Company.
(n) Any claim arising from the activities of a Federal land bank, a Federal intermediate
credit bank, or a bank for cooperatives.
B.
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FTCA Regulations
28 C.F.R. Part 14. Administrative Claims Under Federal Tort Claims Act
28 C.F.R. 14.1 Scope of regulations.
These regulations shall apply only to claims asserted under the Federal Tort Claims Act.
The terms Federal agency and agency, as used in this part, include the executive
departments, the military departments, independent establishments of the United
States, and corporations primarily acting as instrumentalities or agencies of the United
States but do not include any contractor with the United States.
28 C.F.R. 14.2 Administrative claim; when presented.
(a) 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.
(b)(1) A claim shall be presented to the Federal agency whose activities gave rise to the
claim. When a claim is presented to any other Federal agency, that agency shall
transfer it forthwith to the appropriate agency, if the proper agency can be identified
from the claim, and advise the claimant of the transfer. If transfer is not feasible the
claim shall be returned to the claimant. The fact of transfer shall not, in itself, preclude
further transfer, return of the claim to the claimant or other appropriate disposition of the
claim. A claim shall be presented as required by 28 U.S.C. 2401(b) as of the date it is
received by the appropriate agency.
(2) When more than one Federal agency is or may be involved in the events
giving rise to the claim, an agency with which the claim is filed shall contact all
other affected agencies in order to designate the single agency which will
thereafter investigate and decide the merits of the claim. In the event that an
agreed upon designation cannot be made by the affected agencies, the
Department of Justice shall be consulted and will thereafter designate an agency
to investigate and decide the merits of the claim. Once a determination has been
made, the designated agency shall notify the claimant that all future
correspondence concerning the claim shall be directed to that Federal agency.
All involved Federal agencies may agree either to conduct their own
administrative reviews and to coordinate the results or to have the investigations
conducted by the designated Federal agency, but, in either event, the designated
Federal agency will be responsible for the final determination of the claim.
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(3) A claimant presenting a claim arising from an incident to more than one
agency should identify each agency to which the claim is submitted at the time
each claim is presented. Where a claim arising from an incident is presented to
more than one Federal agency without any indication that more than one agency
is involved, and any one of the concerned Federal agencies takes final action on
that claim, the final action thus taken is conclusive on the claims presented to the
other agencies in regard to the time required for filing suit set forth in 28 U.S.C.
2401(b). However, if a second involved Federal agency subsequently desires to
take further action with a view towards settling the claim the second Federal
agency may treat the matter as a request for reconsideration of the final denial
under 28 CFR 14.9(b), unless suit has been filed in the interim, and so advise the
claimant.
(4) If, after an agency final denial, the claimant files a claim arising out of the
same incident with a different Federal agency, the new submission of the claim
will not toll the requirement of 28 U.S.C. 2401(b) that suit must be filed within six
months of the final denial by the first agency, unless the second agency
specifically and explicitly treats the second submission as a request for
reconsideration under 28 CFR 14.9(b) and so advises the claimant.
(c) A claim presented in compliance with paragraph (a) of this section may be amended
by the claimant at any time prior to final agency action or prior to the exercise of the
claimant's option under 28 U.S.C. 2675(a). Amendments shall be submitted in writing
and signed by the claimant or his duly authorized agent or legal representative. Upon
the timely filing of an amendment to a pending claim, the agency shall have six months
in which to make a final disposition of the claim as amended and the claimant's option
under 28 U.S.C. 2675(a) shall not accrue until six months after the filing of an
amendment.
28 C.F.R. 14.3 Administrative claim; who may file.
(a) A claim for injury to or loss of property may be presented by the owner of the
property, his duly authorized agent or legal representative.
(b) A claim for personal injury may be presented by the injured person, his duly
authorized agent, or legal representative.
(c) A claim based on death may be presented by the executor or administrator of the
decedent's estate, or by any other person legally entitled to assert such a claim in
accordance with applicable State law.
(d) A claim for loss wholly compensated by an insurer with the rights of a subrogee may
be presented by the insurer. A claim for loss partially compensated by an insurer with
the rights of a subrogee may be presented by the parties individually as their respective
interests appear, or jointly.
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28 C.F.R. 14.4 Administrative claims; evidence and information to be submitted.

(a) Death. In support of a claim based on death, the claimant may be required to submit
the following evidence or information:
(1) An authenticated death certificate or other competent evidence showing
cause of death, date of death, and age of the decedent.
(2) Decedent's employment or occupation at time of death, including his monthly
or yearly salary or earnings (if any), and the duration of his last employment or
occupation.
(3) Full names, addresses, birth dates, kinship, and marital status of the
decedent's survivors, including identification of those survivors who were
dependent for support upon the decedent at the time of his death.
(4) Degree of support afforded by the decedent to each survivor dependent upon
him for support at the time of his death.
(5) Decedent's general physical and mental condition before death.
(6) Itemized bills for medical and burial expenses incurred by reason of the
incident causing death, or itemized receipts of payment for such expenses.
(7) If damages for pain and suffering prior to death are claimed, a physician's
detailed statement specifying the injuries suffered, duration of pain and suffering,
any drugs administered for pain, and the decedent's physical condition in the
interval between injury and death.
(8) Any other evidence or information which may have a bearing on either the
responsibility of the United States for the death or the damages claimed.
(b) Personal injury. In support of a claim for personal injury, including pain and suffering,
the claimant may be required to submit the following evidence or information:
(1) A written report by his attending physician or dentist setting forth the nature
and extent of the injury, nature and extent of treatment, any degree of temporary
or permanent disability, the prognosis, period of hospitalization, and any
diminished earning capacity. In addition, the claimant may be required to submit
to a physical or mental examination by a physician employed by the agency or
another Federal agency. A copy of the report of the examining physician shall be
made available to the claimant upon the claimant's written request provided that
he has, upon request, furnished the report referred to in the first sentence of this
paragraph and has made or agrees to make available to the agency any other
physician's reports previously or thereafter made of the physical or mental
condition which is the subject matter of his claim.
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(2) Itemized bills for medical, dental, and hospital expenses incurred, or itemized
receipts of payment for such expenses.
(3) If the prognosis reveals the necessity for future treatment, a statement of
expected expenses for such treatment.
(4) If a claim is made for loss of time from employment, a written statement from
his employer showing actual time lost from employment, whether he is a full or
part-time employee, and wages or salary actually lost.
(5) If a claim is made for loss of income and the claimant is self-employed,
documentary evidence showing the amounts of earnings actually lost.
responsibility of the United States for the personal injury or the damages claimed.
(c) Property damage. In support of a claim for injury to or loss of property, real or
personal, the claimant may be required to submit the following evidence or information:
(1) Proof of ownership.
(2) A detailed statement of the amount claimed with respect to each item of
property.
(3) An itemized receipt of payment for necessary repairs or itemized written
estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price and salvage value,
where repair is not economical.
responsibility of the United States for the injury to or loss of property or the
damages claimed.
28 C.F.R. 14.5 Review by legal officers.
The authority to adjust, determine, compromise, and settle a claim under the provisions
of section 2672 of Title 28, United States Code, shall, if the amount of a proposed
compromise, settlement, or award exceeds $5,000, be exercised by the head of an
agency or his designee only after review by a legal officer of the agency.
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28 C.F.R. 14.6 Dispute resolution techniques and limitations on agency authority.

(a) Guidance regarding dispute resolution. The administrative process established
pursuant to 28 U.S.C. 2672 and this part 14 is intended to serve as an efficient effective
forum for rapidly resolving tort claims with low costs to all participants. This guidance is
provided to agencies to improve their use of this administrative process and to
maximize the benefit achieved through application of prompt, fair, and efficient
techniques that achieve an informal resolution of administrative tort claims without
burdening claimants or the agency. This section provides guidance to agencies only
and does not create or establish any right to enforce any provision of this part on behalf
of any claimant against the United States, its agencies, its officers, or any other person.
This section also does not require any agency to use any dispute resolution technique
or process.
(1) Whenever feasible, administrative claims should be resolved through informal
discussions, negotiations, and settlements rather than through the use of any
formal or structured process. At the same time, agency personnel processing
administrative tort claims should be trained in dispute resolution techniques and
skills that can contribute to the prompt, fair, and efficient resolution of
administrative claims.
(2) An agency may resolve disputed factual questions regarding claims against
the United States under the FTCA, including 28 U.S.C. 2671-2680, through the
use of any alternative dispute resolution technique or process if the agency
specifically agrees to employ the technique or process, and reserves to itself the
discretion to accept or reject the determinations made through the use of such
technique or process.
(3) Alternative dispute resolution techniques or processes should not be adopted
arbitrarily but rather should be based upon a determination that use of a
particular technique is warranted in the context of a particular claim or claims,
and that such use will materially contribute to the prompt, fair, and efficient
resolution of the claims. If alternative dispute resolution techniques will not
materially contribute to the prompt, fair, and efficient resolution of claims, the
dispute resolution processes otherwise used pursuant to these regulations shall
be the preferred means of seeking resolution of such claims.
(b) Alternative dispute resolution.
(1) Case-by-case. In order to use, and before using, any alternative dispute
resolution technique or process to facilitate the prompt resolution of disputes that
are in excess of the agency's delegated authority, an agency may use the
following procedure to obtain written approval from the Attorney General, or his
or her designee, to compromise a claim or series of related claims.
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(i) A request for settlement authority under paragraph (b)(1) of this section
shall be directed to the Director, Torts Branch, Civil Division, Department
of Justice, ("Director") and shall contain information justifying the request,
including:
(A) The basis for concluding that liability exists under the FTCA;
(B) A description of the proposed alternative dispute resolution
technique or process and a statement regarding why this proposed
form of alternative dispute resolution is suitable for the claim or
claims;
(C) A statement reflecting the claimant's or claimants' consent to
use of the proposed form of alternative dispute resolution,
indicating the proportion of any additional cost to the United States
from use of the proposed alternative dispute resolution technique or
process that shall be borne by the claimant or claimants, and
specifying the manner and timing of payment of that proportion to
be borne by the claimant or claimants;
(D) A statement of how the requested action would facilitate use of
an alternative dispute resolution technique or process;
(E) An explanation of the extent to which the decision rendered in
the alternative dispute resolution proceeding would be made
binding upon claimants; and,
(F) An estimate of the potential range of possible settlements
resulting from use of the proposed alternative dispute resolution
technique.
(ii) The Director shall forward a request for expedited settlement action
under paragraph (b)(1)(i) of this section, along with the Director's
recommendation as to what action should be taken, to the Department of
Justice official who has authority to authorize settlement of the claim or
related claims. If that official approves the request, a written authorization
shall be promptly forwarded to the requesting agency.
(2) Delegation of authority. Pursuant to, and within the limits of, 28 U.S.C. 2672,
the head of an agency or his or her designee may request delegations of
authority to make any award, compromise, or settlement without the prior written
approval of the Attorney General or his or her designee in excess of the agency's
authority. In considering whether to delegate authority pursuant to 28 U.S.C.
2672 in excess of previous authority conferred upon the agency, consideration
shall be given to:
Page | 69
(i) The extent to which the agency has established an office whose
responsibilities expressly include the administrative resolution of claims
presented pursuant to the Federal Tort Claims Act;
(ii) The agency's experience with the resolution of administrative claims
presented pursuant to 28 U.S.C. 2672;
(iii) The Department of Justice's experiences with regard to administrative
resolution of tort claims arising out of the agency's activities.
(c) Monetary authority. An award, compromise, or settlement of a claim by an agency
under 28 U.S.C. 2672, in excess of $25,000 or in excess of the authority delegated to
the agency by the Attorney General pursuant to 28 U.S.C. 2672, whichever is greater,
shall be effected only with the prior written approval of the Attorney General or his or her
designee. For purposes of this paragraph, a principal claim and any derivative or
subrogated claim shall be treated as a single claim.
(d) Limitations on settlement authority
(1) Policy. An administrative claim may be adjusted, determined, compromised,
or settled by an agency under 28 U.S.C. 2672 only after consultation with the
Department of Justice when, in the opinion of the agency:
(i) A new precedent or a new point of law is involved; or
(ii) A question of policy is or may be involved; or
(iii) The United States is or may be entitled to indemnity or contribution
from a third party and the agency is unable to adjust the third party claim;
or
(iv) The compromise of a particular claim, as a practical matter, will or may
control the disposition of a related claim in which the amount to be paid
may exceed $25,000 or may exceed the authority delegated to the agency
by the Attorney General pursuant to 28 U.S.C. 2672, whichever is greater.
(2) Litigation arising from the same incident. An administrative claim may be
adjusted, determined, compromised, or settled by an agency under 28 U.S.C.
2672 only after consultation with the Department of Justice when the agency is
informed or is otherwise aware that the United States or an employee, agent, or
costplus contractor of the United States is involved in litigation based on a claim
arising out of the same incident or transaction.
Page | 70
(e) Procedure. When Department of Justice approval or consultation is required, or the

advice of the Department of Justice is otherwise to be requested, under this section, the
written referral or request of the Federal agency shall be directed to the Director at any
time after presentment of a claim to the Federal agency, and shall contain:
(1) A short and concise statement of the facts and of the reasons for the referral
or request;
(2) Copies of relevant portions of the agency's claim file; and
(3) A statement of the recommendations or views of the agency.
28 C.F.R. 14.7 [Reserved]
28 C.F.R. 14.8 Investigation and examination.
A Federal agency may request any other Federal agency to investigate a claim filed
under section 2672, title 28, U.S. Code, or to conduct a physical examination of a
claimant and provide a report of the physical examination. Compliance with such
requests may be conditioned by a Federal agency upon reimbursement by the
requesting agency of the expense of investigation or examination where reimbursement
is authorized, as well as where it is required, by statute or regulation.
28 C.F.R. 14.9 Final denial of claim.
(a) Final denial of an administrative claim shall be in writing and sent to the claimant, his
attorney, or legal representative by certified or registered mail. The notification of final
denial may include a statement of the reasons for the denial and shall include a
statement that, if the claimant is dissatisfied with the agency action, he may file suit in
an appropriate U.S. District Court not later than 6 months after the date of mailing of the
notification.
(b) Prior to the commencement of suit and prior to the expiration of the 6- month period
provided in 28 U.S.C. 2401(b), a claimant, his duly authorized agent, or legal
representative, may file a written request with the agency for reconsideration of a final
denial of a claim under paragraph (a) of this section. Upon the timely filing of a request
for reconsideration the agency shall have 6 months from the date of filing in which to
make a final disposition of the claim and the claimant's option under 28 U.S.C. 2675(a)
shall not accrue until 6 months after the filing of a request for reconsideration. Final
agency action on a request for reconsideration shall be effected in accordance with the
provisions of paragraph (a) of this section.
Page | 71
28 C.F.R. 14.10 Action on approved claims.

(a) Any award, compromise, or settlement in an amount of $2,500 or less made
pursuant to 28 U.S.C. 2672 shall be paid by the head of the Federal agency concerned
out of the appropriations available to that agency. Payment of an award, compromise,
or settlement in excess of $2,500 shall be obtained by the agency by forwarding
Standard Form 1145 to the Claims Division, General Accounting Office. When an award
is in excess of $25,000, or in excess of the authority delegated to the agency by the
Attorney General pursuant to 28 U.S.C. 2672, whichever is greater, Standard Form
1145 must be accompanied by evidence that the award, compromise, or settlement has
been approved by the Attorney General or his designee. When the use of Standard
Form 1145 is required, it shall be executed by the claimant, or it shall be accompanied
by either a claims settlement agreement or a Standard Form 95 executed by the
claimant. When a claimant is represented by an attorney, the voucher for payment shall
designate both the claimant and his attorney as payees; the check shall be delivered to
the attorney, whose address shall appear on the voucher.
(b) Acceptance by the claimant, his agent, or legal representative, of any award,
compromise or settlement made pursuant to the provisions of section 2672 or 2677 of
Title 28, United States Code, shall be final and conclusive on the claimant, his agent or
legal representative and any other person on whose behalf or for whose benefit the
claim has been presented, and shall constitute a complete release of any claim against
the United States and against any employee of the Government whose act or omission
gave rise to the claim, by reason of the same subject matter.
28 C.F.R. 14.11 Supplementing regulations.
Each agency is authorized to issue regulations and establish procedures consistent with
the regulations in this part.
Page | 72
STANDARD FORM 9515
15
An electronic copy can be found at http://www.usdoj.gov/civil/docs_forms/SF-95.pdf.
Page | 73
Page | 74
Page | 75
ATTORNEY AUTHORIZATION
Page | 76
ATTORNEY AUTHORIZATION
TO:
Relevant Agency
Address
I, _________________________________, hereby designate and authorize

_________________________________, an attorney associated with the law office of
_________________________________, to represent me and continue any and all
claims and/or actions which have been filed or will be filed arising from an incident
which occurred on _________________________________, as described with more
specificity as follows: ____________________________________________________
______________________________________________________________________
______________________________________________________________________
_____________________________________________________________________.
Executed this ____ day of _____________________, 20___.
________________________________
Signature of Claimant
Sworn to before me this ____ day
of __________________, 20____.
_______________________________
Notary Public
Page | 77
ACKNOWLEDGMENT AND REQUEST

FOR ADDITIONAL INFORMATION
Page | 78
Page | 79
Page | 80
Page | 81
Page | 82
Page | 83
Page | 84
Page | 85
Page | 86
Page | 87
FORMAL DENIAL
Page | 88
Page | 89
Page | 90
Page | 91
U.S. GOVERNMENT DEPARTMENTS AND AGENCIES16
16
Website links to each of the nearly 500 United States government departments and
agencies set forth on pages 91 to 102, infra, can be found at:
www.usa.gov/directory/federal/index.shtml.
Page | 92
U.S. Departments and Agencies:
Access Board
Administration for Children and Families (ACF)
Administration for Native Americans
Administration on Aging (AoA)
Administration on Developmental Disabilities
Administrative Committee of the Federal Register
Administrative Conference of the United States
Administrative Office of the U.S. Courts
Advisory Council on Historic Preservation
African Development Foundation
Agency for Healthcare Research and Quality (AHRQ)
Agency for International Development
Agency for Toxic Substances and Disease Registry
Agricultural Marketing Service
Agricultural Research Service
Agriculture Department
Air and Radiation Hotline
Air Force
Alcohol and Tobacco Tax and Trade Bureau (Treasury)
Alcohol, Tobacco, Firearms, and Explosives Bureau (Justice)
American Battle Monuments Commission
AmeriCorps Recruiting
AMTRAK (National Railroad Passenger Corporation)
Animal and Plant Health Inspection Service
Antitrust Division
Appalachian Regional Commission
Architect of the Capitol
Archives (National Archives and Records Administration)
Arctic Research Commission
Armed Forces Retirement Home
Arms Control and International Security
Army
Army Corps of Engineers
Arthritis and Musculoskeletal Interagency Coordinating Committee
Atlantic Fleet Forces Command
Bankruptcy Courts
Barry M. Goldwater Scholarship and Excellence in Education Foundation
Bonneville Power Administration
Botanic Garden
Broadcasting Board of Governors (Voice of America, Radio|TV Marti and more)
Bureau of Alcohol and Tobacco Tax and Trade (Treasury)
Page | 93
Bureau of Alcohol, Tobacco, Firearms, and Explosives (Justice)

Bureau of Citizenship and Immigration Services (USCIS)
Bureau of Consumer Financial Protection
Bureau of Economic Analysis (BEA)
Bureau of Indian Affairs (BIA)
Bureau of Industry and Security
Bureau of International Labor Affairs
Bureau of Justice Statistics
Bureau of Labor Statistics
Bureau of Land Management (BLM)
Bureau of Prisons
Bureau of Reclamation
Bureau of the Census
Bureau of the Engraving and Printing
Bureau of the Public Debt
Bureau of Transportation Statistics
Capitol Visitor Center
Census Bureau
Center for Food Safety and Applied Nutrition
Centers for Disease Control and Prevention (CDC)
Centers for Medicare & Medicaid Services (CMS)
Central Command (CENTCOM)
Central Intelligence Agency (CIA)
Chemical Safety and Hazard Investigation Board
Chief Acquisition Officers Council
Chief Financial Officers Council
Chief Human Capital Officers Council
Chief Information Officers Council
Citizens' Stamp Advisory Committee
Citizenship and Immigration Services (USCIS)
Civilian Radioactive Waste Management
Coast Guard
Commerce Department
Commission on Civil Rights
Commission on Fine Arts
Commission on International Religious Freedom
Commission on Security and Cooperation in Europe (Helsinki Commission)
Committee for Purchase from People Who Are Blind or Severely Disabled
Committee for the Implementation of Textile Agreements
Committee on Foreign Investment in the United States
Community Oriented Policing Services (COPS)
Community Planning and Development
Compliance, Office of
Computer Emergency Readiness Team (US CERT)
Page | 94
Congressional Budget Office (CBO)

Congressional Research Service
Constitution Center
Consumer Financial Protection Bureau
Consumer Product Safety Commission (CPSC)
Coordinating Council on Juvenile Justice and Delinquency Prevention
Copyright Office
Corporation for National and Community Service
Corps of Engineers
Council of Economic Advisers
Council on Environmental Quality
Court of Appeals for the Armed Forces
Court of Appeals for the Federal Circuit
Court of Appeals for Veterans Claims
Court of Federal Claims
Court of International Trade
Court Services and Offender Supervision Agency for the District of Columbia
Defense Acquisition University
Defense Advanced Research Projects Agency (DARPA)
Defense Commissary Agency
Defense Contract Audit Agency (DCAA)
Defense Contract Management Agency
Defense Field Activities
Defense Finance and Accounting Services (DFAS)
Defense Information Systems Agency (DISA)
Defense Intelligence Agency (DIA)
Defense Legal Services Agency
Defense Logistics Agency (DLA)
Defense Nuclear Facilities Safety Board
Defense Security Cooperation Agency (DSCA)
Defense Security Service (DSS)
Defense Technical Information Center
Defense Threat Reduction Agency (DTRA)
Delaware River Basin Commission
Denali Commission
Department of Agriculture (USDA)
Department of Commerce (DOC)
Department of Defense (DOD)
Department of Defense Inspector General
Department of Education (ED)
Department of Energy (DOE)
Department of Health and Human Services (HHS)
Department of Homeland Security (DHS)
Department of Housing and Urban Development (HUD)
Page | 95
Department of Justice (DOJ)

Department of Labor (DOL)
Department of State (DOS)
Department of the Interior (DOI)
Department of the Treasury
Department of Transportation (DOT)
Department of Veterans Affairs (VA)
Director of National Intelligence, Office of
Domestic Policy Council
Drug Enforcement Administration
Economic Adjustment Office
Economic Analysis, Bureau of
Economic Development Administration
Economic Research Service
Economic, Business and Agricultural Affairs
Economics and Statistics Administration
Education Department
Election Assistance Commission
Elementary and Secondary Education, Office of
Employee Benefits Security Administration (EBSA)
Employment and Training Administration
Endangered Species Committee
Energy Department
Energy Information Administration
English Language Acquisition Office
Engraving and Printing, Bureau of
Environmental Management (Energy Department)
Environmental Protection Agency (EPA)
Equal Employment Opportunity Commission (EEOC)
European Command
Executive Office for Immigration Review
Export-Import Bank of the United States
Fair Housing and Equal Opportunity (FHEO)
Farm Credit Administration
Farm Service Agency
Federal Accounting Standards Advisory Board
Federal Aviation Administration (FAA)
Federal Bureau of Investigation (FBI)
Federal Bureau of Prisons
Federal Communications Commission (FCC)
Federal Consulting Group
Federal Deposit Insurance Corporation (FDIC)
Federal Election Commission
Federal Emergency Management Agency (FEMA)
Page | 96
Federal Energy Regulatory Commission

Federal Executive Boards
Federal Financial Institutions Examination Council
Federal Financing Bank
Federal Geographic Data Committee
Federal Highway Administration
Federal Home Loan Mortgage Corporation (Freddie Mac)
Federal Housing Finance Agency
Federal Interagency Committee for the Management of Noxious & Exotic Weeds
Federal Interagency Committee on Education
Federal Interagency Council on Statistical Policy
Federal Judicial Center
Federal Labor Relations Authority
Federal Laboratory Consortium for Technology Transfer
Federal Law Enforcement Training Center
Federal Library and Information Center Committee
Federal Maritime Commission
Federal Mediation and Conciliation Service
Federal Mine Safety and Health Review Commission
Federal Motor Carrier Safety Administration (FMCSA)
Federal National Mortgage Association (Fannie Mae)
Federal Railroad Administration
Federal Reserve System
Federal Retirement Thrift Investment Board
Federal Student Aid Information Center
Federal Trade Commission (FTC)
Federal Transit Administration
Financial Management Service (Treasury Department)
Fiscal Responsibility and Reform, National Commission
Fish and Wildlife Service
Food and Drug Administration (FDA)
Food Safety and Inspection Service
Foreign Agricultural Service
Foreign Claims Settlement Commission
Forest Service
Fossil Energy
Fulbright Foreign Scholarship Board
General Services Administration (GSA)
Geological Survey
Global Affairs (State Department)
Government Accountability Office (GAO)
Government Ethics, Office of
Government National Mortgage Association
Government Printing Office (GPO)
Page | 97
Grain Inspection, Packers and Stockyards Administration

Harry S. Truman Scholarship Foundation
Health and Human Services Department
Health Resources and Services Administration
Healthy Homes and Lead Hazard Control Office
Helsinki Commission (Commission on Security and Cooperation in Europe)
Holocaust Memorial Museum
Homeland Security Department
House Leadership Offices
House of Representatives
House of Representatives Committees
House Office of Inspector General
House Office of the Clerk
House Organizations, Commissions, and Task Forces
Housing Office (HUD)
Illinois and Michigan Canal National Heritage Corridor Commission
Immigration and Customs Enforcement
Indian Affairs, Bureau of
Indian Arts and Crafts Board
Indian Health Service
Industrial College of the Armed Forces
Industry and Security, Bureau of
Information Resource Management College
Information Resources Center
Innovation and Improvement Office
Inspectors General
Institute of Education Sciences
Institute of Museum and Library Services
Institute of Peace
Inter-American Foundation
Interagency Alternative Dispute Resolution Working Group
Interagency Council on Homelessness
Interior Department
Internal Revenue Service (IRS)
International Labor Affairs, Bureau of
International Trade Administration (ITA)
International Trade Commission
Interpol
James Madison Memorial Fellowship Foundation
Japan-United States Friendship Commission
Job Corps
John F. Kennedy Center for the Performing Arts
Joint Board for the Enrollment of Actuaries
Joint Chiefs of Staff
Page | 98
Joint Congressional Committee on Inaugural Ceremonies

Joint Fire Science Program
Joint Forces Command
Joint Forces Staff College
Joint Military Intelligence College
Judicial Circuit Courts of Appeal
Judicial Panel on Multidistrict Litigation
Justice Department
Justice Programs, Office of
Justice Statistics, Bureau of
Juvenile Justice and Delinquency Prevention, Office of
Labor Department (DOL)
Labor Statistics, Bureau of
Land Management, Bureau of
Legal Services Corporation
Library of Congress
Marine Corps
Marine Mammal Commission
Maritime Administration
Marketing and Regulatory Programs (Agriculture Department)
Marshals Service
Mediation and Concitiation Service, Office of
Medicaid and CHIP Payment and Access Commission
Medicare Payment Advisory Commission
Merit Systems Protection Board
Migratory Bird Conservation Commission
Military Postal Service Agency
Millennium Challenge Corporation
Mine Safety and Health Administration
Minority Business Development Agency
Mint
Missile Defense Agency (MDA)
Mississippi River Commission
Morris K. Udall and Stewart L. Udall Foundation
Multifamily Housing Office
National Aeronautics and Space Administration (NASA)
National Agricultural Statistics Service
National AIDS Policy Office
National Archives and Records Administration (NARA)
National Bipartisan Commission on the Future of Medicare
National Capital Planning Commission
National Cemetery Administration (NCA)
National Commission on Fiscal Responsibility and Reform
National Constitution Center
Page | 99
National Council on Disability (NCD)

National Counterintelligence Executive, Office of
National Credit Union Administration
National Defense University
National Drug Intelligence Center
National Economic Council
National Endowment for the Arts
National Endowment for the Humanities
National Gallery of Art
National Geospatial-Intelligence Agency
National Guard
National Highway Traffic Safety Administration (NHTSA)
National Indian Gaming Commission
National Institute of Food and Agriculture
National Institute of Justice
National Institute of Standards and Technology (NIST)
National Institutes of Health (NIH)
National Interagency Fire Center
National Labor Relations Board
National Laboratories (Energy Department)
National Marine Fisheries Service
National Mediation Board
National Nuclear Security Administration
National Ocean Service
National Oceanic and Atmospheric Administration (NOAA)
National Park Foundation
National Park Service
National Railroad Passenger Corporation (AMTRAK)
National Reconnaissance Office
National Science Foundation
National Security Agency (NSA)
National Security Council
National Technical Information Service
National Telecommunications and Information Administration
National Transportation Safety Board
National War College
National Weather Service (NOAA)
Natural Resources Conservation Service
Navy
Northern Command
Northwest Power Planning Council
Nuclear Energy, Science and Technology
Nuclear Regulatory Commission
Nuclear Waste Technical Review Board
Page | 100
Oak Ridge National Laboratory

Occupational Safety and Health Review Commission
Office for Civil Rights, Department of Education
Office of Compliance
Office of Disability Employment Policy
Office of Elementary and Secondary Education (OESE)
Office of Government Ethics
Office of Juvenile Justice and Delinquency Prevention
Office of Management and Budget (OMB)
Office of Mediation and Concitiation Service
Office of National Drug Control Policy (ONDCP)
Office of Personnel Management (OPM)
Office of Refugee Resettlement
Office of Science and Technology Policy
Office of Scientific and Technical Information
Office of Special Counsel
Office of the Comptroller of the Currency (OCC)
Office of the Director of National Intelligence
Office of the Pardon Attorney
Office of Thrift Supervision (OTS)
Open World Leadership Center
Overseas Private Investment Corporation
Pacific Command
Pardon Attorney, Office of
Parole Commission (Justice Department)
Peace Corps
Pension Benefit Guaranty Corporation (PBGC)
Pentagon Force Protection Agency
Pipeline and Hazardous Materials Safety Administration
Policy Development and Research
Political Affairs (State Department)
Postal Regulatory Commission
Postal Service
Power Administrations
President's Council on Physical Fitness and Sports
Presidio Trust
Prisoner of War/Missing Personnel Office
Public and Indian Housing
Public Diplomacy and Public Affairs (State Department)
Radio and TV Marti (Espaol)
Radio Free Asia (RFA)
Radio Free Europe/Radio Liberty (RFE/RL)
Railroad Retirement Board (RRB)
Reclamation, Bureau of
Page | 101
Refugee Resettlement, Office of

Regulatory Information Service Center
Rehabilitation Services Administration (Education Department)
Research and Innovative Technology Administration
Research, Education and Economics (Agriculture Department)
Risk Management Agency (Agriculture Department)
Rural Business and Cooperative Programs
Rural Development
Rural Housing Service
Rural Utilities Service
Saint Lawrence Seaway Development Corporation
Science and Technology Policy, Office of
Science Office (Energy Department)
Scientific and Technical Information, Office of
Secret Service
Securities and Exchange Commission (SEC)
Selective Service System (SSS)
Senate
Senate Committees
Senate Leadership
Senators on the Web
Small Business Administration (SBA)
Smithsonian Institution
Social Security Administration (SSA)
Social Security Advisory Board
Southeastern Power Administration
Southern Command
Southwestern Power Administration
Special Forces Operations Command
State Department
State Justice Institute
Stennis Center for Public Service
Strategic Command
Substance Abuse and Mental Health Services Administration
Supreme Court of the United States
Surface Mining, Reclamation and Enforcement
Surface Transportation Board
Susquehanna River Basin Commission
Tax Court
Taxpayer Advocacy Panel
Tennessee Valley Authority
Trade and Development Agency
Transportation Command
Transportation Department
Page | 102
Transportation Security Administration (TSA)

Transportation Statistics, Bureau of
Treasury Department
TRICARE Management
Trustee Program (Justice Department)
U.S. AbilityOne Commission
U.S. Access Board
U.S. Capitol Visitor Center
U.S. Citizenship and Immigration Services
U.S. Coast Guard
U.S. Commodity Futures Trading Commission (CFTC)
U.S. Election Assistance Commission (EAC)
U.S. Geological Survey (USGS)
U.S. Immigration and Customs Enforcement
U.S. International Trade Commission
U.S. Military Academy, West Point
U.S. Mission to the United Nations
U.S. National Central Bureau - Interpol (Justice Department)
U.S. Patent and Trademark Office
U.S. Postal Service (USPS)
U.S. Sentencing Commission
U.S. Trade and Development Agency
U.S. Trade Representative
Unified Combatant Commands (Defense Department)
Uniformed Services University of the Health Sciences
United States Mint
Veterans Affairs Department (VA)
Veterans Benefits Administration
Veterans Day National Committee
Veterans' Employment and Training Service
Vietnam Educational Foundation
Voice of America (VOA)
Washington Headquarters Services
Weather Service
West Point (Army)
Western Area Power Administration
White House
White House Commission on Presidential Scholars
White House Commission on the National Moment of Remembrance
White House Office of Administration
Women's Bureau (Labor Department)
Woodrow Wilson International Center for Scholars
Page | 103
About the Author

Michael Anthony Bottar is a member of Bottar Leone, PLLC, a Syracuse-based
law firm established in 1983. Mikes trial practice is limited to the prosecution of medical
malpractice, wrongful death, workplace accident, and complex personal injury actions in
all New York State and Federal courts, with an emphasis on claims involving birth
injuries, governmental negligence, and biomedical product liability.
Mike is a graduate of Colgate University and a summa cum laude graduate of
Syracuse University College of Law, where he has served as an adjunct professor since
2010, has authored the Civil Practice chapter of the Syracuse Law Reviews Survey of
New York Law since 2009, and is a member of the law schools Board of Advisors.
Mike is AV rated by Martindale-Hubbell. He is listed in The Best Lawyers In
America for medical malpractice, product liability and personal injury, and is listed in
New York Super Lawyers (Upstate). Mike has been repeatedly recognized as one of
New Yorks top 10 under 40 by the National Academy of Personal Injury Attorneys,
and as one of New Yorks top 40 under 40 and top 100 by The National Trial
Lawyers and the American Society of Legal Advocates. He is a life member of the
Multi-Million Dollar Advocates Forum.
Mike is a member of the board of directors of the New York State Academy of
Trial Lawyers. He is also a member of the Onondaga County Bar Association, New
York State Bar Association, Northern District of New York Federal Court Bar
Association, American Bar Association, and the American Association for Justice.
Mike is a past member and executive editor of the Syracuse Law Review, which
published his note: "Robbing Peter To Pay Paul: Medicaid Liens, Supplemental Needs
Trusts and Personal Injury Recoveries on Behalf of Infants In New York State Following
the Gold Decision." Mikes note has been cited by the Practicing Law Institute (twice),
American Jurisprudence Proof of Facts, and the American Bar Association's Real
Property Trusts and Estates Law Journal. Mike is a past member of the Syracuse
University College of Law Moot Court Honor Society, and was inducted into the Order of
the Coif, the Order of Barristers and the Justinian Honorary Law Society.
Mike began his legal career as a litigation associate with the New York City office
of White & Case, LLP, with professional highlights including representing a French bank
on trial in the United States District Court for the Northern District of California, and
conducting depositions and internal investigations in Buenos Aires, Brussels, Paris,
Hong Kong and Shanghai. Immediately prior to joining Bottar Leone, PLLC, Mike was a
litigation associate with the Syracuse office of Bond, Schoeneck & King, PLLC.

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Michael A. Bottar, Federal Tort Claims Act

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A Desktop Guide To

Federal Tort Claims

Michael A. Bottar, Esq.

In and For Upstate New York. Since 1983.

About the Desktop Guide

A. History and Summary.

IDENTIFYING THE GOVERNMENTAL ACTOR...

THE ADMINISTRATIVE CLAIM

C. Appropriate Agency ...

D. Agency Requests for Additional Information..

THE FEDERAL ACTION

FTCA STATUTES AND REGULATIONS

Standard Form 95..

About the Author.

History and Summary

brought against the United States,

for money damages,

for injury to or loss of property, or personal injury, or death,

caused by the negligent or wrongful act or omission of any employee of

under circumstances where the United States, if a private person, would

The FTCA, with few limited exceptions,

Waiver of sovereign immunity is limited and must be strictly construed in

Claimant must present an administrative claim to the appropriate

FTCA statute of limitations requires claim presentation to an agency within

FTCA statute of limitations requires commencement of suit within 6 months

U.S. District Courts have exclusive jurisdiction to hear FTCA claims.

Venue proper in district where the plaintiff resides or where the

FTCA provides only for non-jury trials. 28 U.S.C. 2402.

No punitive damages. 28 U.S.C. 2674.

No prejudgment interest damages. 28 U.S.C. 2674.

Attorney fees are fixed at 20% of an administrative settlement, and 25% of

IDENTIFYING THE GOVERNMENTAL ACTOR

The HCP includes

See 42 U.S.C. 254(b).

Searches for federally-qualified health centers (FQHC) and federally-qualified health

With regard to FTCA qualified or deemed-qualified healthcare facilities contain

Department of Health and Human Services

Associate General Counsel, General Law Division:

U.S. Department of Veterans Affairs

Regional Counsel, Buffalo/Albany/Syracuse:

United States Postal Service

Customs and Border Protection

THE ADMINISTRATIVE CLAIM4

An example of an agencys denial is set forth at pages 87-90.

A court cannot waive the administrative filing

requirement, even if the claimant seeks an accommodation for disability or hardship.

Statutory Exemption To Timely Exhaustion Westfall Act

Generally, a lawsuit that is commenced prematurely (i.e., before exhaustion) is

Accordingly, a state tort claim against a

The appropriate administrative agency must timely be presented with written

Generally, written notice is supplied by submitting a properly completed

Standard Form 95 (SF95).9

A letter from a claimant to an agency is acceptable if it contains the appropriate

A claim may be submitted by the injured party, an agent, or a legal

See 28 C.F.R. 14.3(d).

appointment is not necessary before an administrative claim may be presented. See

Setting aside administrative notice, appointment is necessary before an action

Written notice timely filed with the

Romulus v. U.S., 983 F.Supp. 336 (E.D.N.Y. 1997)

(Trager, J.), affd, 170 F.3d 131 (2d Cir. 1998).

Stated differently, a claim meets the presentment requirements of 2675(a) only if

Stating that the claimant seeks damages in excess of $X, or $X plus an

Signed and Dated

An administrative claim should be signed by each claimant, or each claimants

Executed this day of _______________, 20_.