Georgia Injury Lawyer Blog

Our serious injury lawyers often request information from governmental agencies in efforts to help our clients. Many times, despite laws requiring disclosure, our requests are routinely denied or ignored.

The Bush administration has consistently pushed toward secrecy in government. Former Attorney General John Ashcroft had issued an order instructing agencies to lean against releasing information if there was any uncertainty about how it would affect national security.

Now the Congress is fighting this trend by passing legislation which would expand the Freedom of Information Act ( FOIA), increase penalties for noncompliance and make records held by government contractors subject to disclosure.

The bill restores a presumption of disclosure standard which requires agencies to release requested information unless there is a finding that such disclosure could do harm.

Agencies would be required to meet a 20-day deadline for responding to requests. Their FOIA offices would have to forward requests for information to the appropriate agency office within 10 days of receiving them. It they fail to meet the 20-day deadline, agencies would have to refund search and duplication fees for noncommercial requesters. They also would have to explain any redacted information by citing the specific exemption under which the information qualifies. Nonproprietary information held by government contractors also would be subject to the law.

A previously passed version of the bill was rewritten address concerns about how government agencies would pay for attorneys' fees when they lose or settle a Freedom of Information Act lawsuit.

The legislation also creates a system for the media and public to track the status of their FOIA requests. It establishes a hotline service for all federal agencies to deal with problems and an ombudsman to provide an alternative to litigation in disclosure disputes.

Posted by Finch McCranie, LLP | Permalink | Email This Post

Posted In: Civil Procedure , Federal Tort Claims , Torts

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The Federal Tort Claims Act (FTCA) waives sovereign immunity only for the acts or omissions of an “employee of the government while acting within the scope of his office or employment. . .” 28 U.S.C. § 1346(b). Because it is a limited waiver of sovereign immunity, the provisions of the Federal Tort Claims Act are strictly construed and must be followed if a valid claim against the government is to be asserted under its provisions.

The provisions of the Act are found in Title 28 of the United States Code. 28 U.S..C § 1346(b); 1402(b); 2401(b); and 2671-2680. If someone is injured by the acts of a government employee, suit may not be brought against the agency or the employee but only against the United States as the named defendant. See 28 U.S.C. § 1346(b). With regard to venue, suit may be brought in the judicial district where the plaintiff resides or where the act or omission occurred. There is no right to a jury trial as all such cases are decided by United Stated District Court Judges. If a claimant is injured by the acts of a government employee. such as a postal truck driver, the liability of the United States is the same as a private individual under like circumstances but in no event shall the government be liable for interest prior to judgment or punitive damages. See Molzof v. United States, 502 U.S. 301 (1992).

We have written before about some of the unique issues associated with these claims. One of the biggest problems is the failure to timely submit written administrative claim as is required by the act. Such an ante litem notice or administrative claim must be filed within two years of the date of the accident or occurrence. A proper notice, to be sufficient under the act, must be in writing and contain sufficient information for the agency to investigate the claim. A sum certain amount for damages must be specified and the claim must be submitted in writing. A claim is deemed presented when received by the agency, not when mailed by the claimant. Denial of a claim is the day its mailed and not when received by the claimant.

If an administrative claim is denied, suit may not be filed for an amount in excess of the amount claimed administratively except when 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.

Once a claim is submitted to the proper federal agency, the agency has six months to investigate and adjudicate a claim and suit may not be filed during this period. The denial of a claim must be in writing and sent by registered or certified mail and must be unequivocal in denying the claim. The claimant must be informed of the right to file suit within six months in the appropriate federal district court.

Continue reading "Suing Uncle Sam Under the Federal Tort Claims Act" »

Posted by Finch McCranie, LLP | Permalink | Email This Post

Posted In: Federal Tort Claims

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We have previously written about procedural problems that clients may face when dealing with claims against governmental entities. Specifically, if an individual has a claim against a city or county government, there are certain pre-suit, ante litem requirements that must be observed before suit can be filed. We have written about this in earlier articles and would refer the reader to the same. We have also written these procedural problems under Georgia’s State Tort Claims Act. Here, we write briefly to discuss some unique issues under the Federal Tort Claims Act (FTCA).

As we have indicated previously, the Federal Torts Claims Act also has an ante litem requirement. A form 95 Claim Form (or its equivalent) must be filed with the appropriate federal agency or department within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). It is also important that there be separate claims for each claimant that may have incurred damages as a result of the alleged wrongful conduct or negligent act of a government employee or agency. See 28 C.F.R. § 14.3(b). Also, only the United States of America may be named as a defendant in a lawsuit later filed, not the agency or the employee, and the suit must be brought against the United States within six month of the claim denial. See 28 U.S.C. § 2401(b).

Another unique provision of the Federal Tort Claims Act is that the courts in such matters apply the Federal Rules of Civil Procedure to procedural law but state substantive law to the alleged negligent act. For example, in a hypothetical medical malpractice case, if a doctor at the Veterans Administration Hospital, for example, allegedly commits malpractice in one jurisdiction, even though the plaintiff may reside in another jurisdiction and therefore have the right to file the claim where they reside under 28 U.S.C. § 1402(b), nonetheless, the malpractice claim will still be governed under the law of the place where the tort occurred. For example, here in Georgia, there is a requirement that an Affidavit be attached to any claim for medical malpractice in which a reviewing physician certifies that one or more negligent acts occurred which constitutes the alleged deviation from acceptable standards of medical care and skill. If such an Affidavit is not attached to a medical malpractice complaint, the complaint can be dismissed under Georgia law. Similarly, even though Federal Civil Procedure governs the rules of procedure for claims brought under the Federal Torts Claims Act, nonetheless, the careful practitioner must always look to state substantive law and make sure that state substantive law is followed in claims filed under the FTCA.

Our purpose in writing on this subject is simply to caution those who might seek to represent themselves with claims against either federal, state governments or local governments that they should be very careful in doing so due to the procedural requirements inherent in such claims. We would strongly urge any person with a claim against the government to confer with counsel before attempting to proceed on their own. Failure to do so could result in an unfavorable result.

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Posted In: Civil Procedure , Federal Tort Claims

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We have handled many federal tort claims on behalf of clients over the years but, nonetheless, it is always helpful to have an Abbreviated Federal Tort Claims Act Checklist to make sure that we are in compliance with the law. Those who have never handled a case against the United States government may find some of the procedural requirements burdensome and difficult to navigate. Nonetheless, once a checklist is developed, the procedure is actually fairly easy to follow but and this is an important but, it must be followed correctly. Here are some of the items on our list:

1) The Federal Torts Claims Act is found at 28 U.S.C.§ 1346(b) and 2671 through 2680. As all practitioners know, a detailed Ante Litem Notice must be filed with the federal agency within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). An Ante Litem Notice is typically filed via a standard Form 95 which is found at 28 C.F.R. part 14. While each agency has their own standard Form 95, the Department of Justice standard Form 95 is that which is most easy to use and which provides all the of the requirements of a satisfactory Ante Litem Notice.

2) Typically, when one submits the Notice of Claim Form 95 to the appropriate federal agency, the basis of the claim is stated (which is the date the incident occurred, the description of the claimed negligent act, the type of injury suffered and the parties involved). One must describe in detail the nature and extent of the damages and the amount being claimed. It is important that you claim all the monetary damages you seek on this form because the law provides that if the case is not resolved via an administrative review that you cannot sue for more than you claim in your form.

3) Another important feature of Federal Tort Claims Act cases is that a separate form must be filled out for each damaged claimant. For example, if a husband and wife are injured one cannot file a single for both but must file separate forms. If there are derivative claims such as an estate’s claim when a wrongful death is involved or a loss of consortium claim the practitioner or claimant should file separate claim forms because the Federal Tort Claims Act applies to each separate claim. See 28 C.F.R. § 14.3(b).

4) Once a claim is filed with the appropriate federal agency, the claimant must wait for six months or denial whichever is earlier before suit can be filed. See 28 U.S.C. § 2675(a). If the claim is denied or six months expires without any action by the federal agency, suit must be filed where the plaintiff resides or where the act or omission complained of occurred. See 28 U.S.C. § 1402(b). Once suit is filed, only the United States of America may be named as a defendant, not the agency and not the negligent employee.

Continue reading "An Abbreviated Checklist For The Federal Tort Claims Act" »

Posted by Finch McCranie, LLP | Permalink | Email This Post

Posted In: Federal Tort Claims

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