United States Department of Agriculture
Research, Education, and Economics
ARS * CSREES * ERS * NASS
Policies and Procedures
| Title: | Tort Claims Administration |
| Number: | 227.1 |
| Date: | 1/25/1999 |
| Originating Office: | Procurement and Property Division, Procurement and Property Branch, AFM/ARS |
| This Replaces: | ARS Manual and P&P 227.1 dated 11/91 |
| Distribution: | REE Offices in Headquarters, Areas & Field Locations |
| This P&P establishes responsibility for the management and control of claims filed under the Federal Tort Claims Act. It also provides procedures for the handling of tort claims and payments. |
Table Of Contents
1. Introduction
2. Authorities
3. Establishing Liability Under the FTCA
Negligent or Wrongful Act or
Omission
Federal Employee
Non-Federal Employee
Scope of Employment
State Where Act or Omission Occurred
Federal Employees Liability Reform
and Tort Compensation Act, 1988
4. Exceptions to FTCA
Discretionary Function
Intentional Torts
Misrepresentation
Underlying Duty
Good Samaritan Doctrine
Interference with Contractual
Relationships
Quarantine
Cause of Action Arising in a
Foreign Country
5. Statute of Limitations
6. Initiating a Claim
Administrative Claim
Appropriate Federal Agency
Written Demand for Money Damages
Specific Dollar Sum
Signature of Claimant
Identification of the Cause
Lawsuits
7. Exceptions to Administrative Claim Requirements
Counterclaim
Cross-claim
Third Party Claim
8. Procedures For Handling Administrative Claims
Date Stamp
Freeze Files
Designated Tort Claim
Representatives (TCR)
Claim Investigation
Memoranda of Facts and Findings
Forwarding Claims to the
Designated TCR
Examination of Claim
Invalid or Incomplete Claims
Valid Claims
Substantiation of Claim
Request for Information
9. Memoranda of Facts and Findings
10. The Administrative Report
Background Information
Analysis of the Events
Relevant Documentation
Respond to Every Allegation
Determination of Fault
Policy Recommendation
Damage Analysis
Claims Against the Claimant
11. OGC Determination of Claims
Forwarding of Claim and Claim
Files to OGC
Determination of Claims
12. Tort Claim Payment
Payment Procedures for Tort Claims
$2,500 or Less
Payment Procedures for Tort Claims
Exceeding $2,500
Final Settlement
Records
13. Litigation
Lawsuits Against the United States
Lawsuits Against an Employee of
the Federal Government
14. Steps in Litigation
Complaint and Summons
Discovery
Motion to Determine a Lawsuit
Prior to Discovery
Pretrial Statement
Trial Preparation
Trial
15. Summary of Responsibilities
16. Glossary
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Exhibit 8
Exhibit 8 A
Exhibit 8 B
Exhibit 8 C
Exhibit 8 D
In 1946 the Federal Tort Claims Act (FTCA) established a system for filing claims against
the United States. This means an individual may sue the United States for money damages,
loss of property, personal injury, or death provided circumstances fit within the strict
limits of the FTCA. The FTCA permits recovery of money damages because of a negligent or
wrongful act or omission by the Federal Government or an employee of the Federal
Government while the employee was acting within his/her scope of employment or office.
The following laws and regulations govern the procedures and processes for administering
claims against the Government:
Negligent or Wrongful Act or Omission
Under the FTCA, the United States is liable for money damages for loss of the
claimant's property, personal injury, or death caused by the negligent or wrongful act or
mission of any employee of the Government while the employee was acting within the scope
of his/her office of employment.
Proof of Negligence. The claimant must prove that there was a negligent or wrongful
act or omission by an employee of the Federal Government.
Proximate Cause. The alleged negligent or wrongful act or omission must have
actually caused the damage to the person filing suit.
An employee of the Federal Government must have committed the negligent or wrongful act
or omission. The Act extends liability to include agents of the Federal Government or
non-Federal employees working on joint ventures or cooperative agreements.
To determine liability for actions involving non-Federal employees under the FTCA, ask
the following questions:
If yes, the Federal Government may be liable for any damages incurred under the FTCA.
The negligent or wrongful act or omission of employees of the Federal Government must
have been committed while employees were acting within their “scope of
employment.” State law determines the definition of scope of employment. This may/may
not be the same as the Federal Government's definition of “official duties.”
The Drivers Act section of the FTCA gives statutory immunity to Federal employees while
driving Government vehicles within their scope of employment. This means a Federal
employee involved in an accident while driving a Government motor vehicle in his/her scope
of employment cannot be sued as an individual.
State Where Act or Omission Occurred
A program activity that causes loss or damage to an individual may be considered
negligent and liable in one State and not in another. The determining factor is the common
law of the State.
Common Law. The common law for a State is a system of law based on judicial
precedent. This is not limited to State statutes. In addition to State statutes, the
interpretations and developments of these statutes that the courts have handed down over
the years also are State law.
Liability under the FTCA is based on what the courts have determined to be common law
of torts in that State. The Federal Government is not protected by any State restrictions
imposed on filing suits against a State, county, or municipal government. If a private
person or company is liable under the tort laws of the State, the United States is liable
in like circumstances.
Analogous Duty. Conversely, if the State law does not consider an activity or
action to create liability under State law, an individual cannot file a claim against the
Federal Government under the FTCA. This is called the doctrine of “analogous
duty.”
Federal Employees Liability Reform and Tort
Compensation Act, 1988
This Act:
State employees should refer to their particular State law on liability, immunity, and
indemnity.
When Congress enacted the FTCA, they also listed certain kinds of activities that would be
exempt from liability. 28 U.S.C. 2680 lists all the exceptions. However, the ones most
often cited are:
The statute of limitations is the time limit an individual or company has to file an
administrative claim, in writing, with the appropriate Federal agency. The statue of
limitations under the FTCA is 2 years from the date of the accrual of the claim. The
accrual of a claim begins at the moment the Government violated an individual's rights and
the individual was damaged. In some cases, the accrual of the claim is not easy to
determine and may be subject to interpretation by the court. While the court cannot change
the 2-year statute, they can interpret the date on which it begins.
To initiate a claim against the Federal Government under the FTCA, the claimant must file
an administrative claim with the appropriate Federal agency within 2 years of the accrual
of the claim.
A valid administrative claim is when the appropriate Federal agency receives a written
demand for money damages, indicating a specific dollar amount, signed by the claimant or
someone authorized to sign for the claimant, identifying the cause which led to the
claims.
The Federal agency whose program resulted in the claim must receive an administrative
claim. If another Federal agency receives the claim, that agency will immediately forward
the claim to the appropriate agency, if known. If the agency cannot identify the
appropriate agency, the agency must return the claim to the claimant.
Written Demand for Money Damages
A claim against the Government must be in writing and must include a demand for money
damages. The claim may be a letter, form SF-95, Claim for Damage or Injury, or other
written communication which meets the requirements of an administrative claim. (See
Exhibit 1 and Exhibit 2.)
Claimants may use form SF-95 to file a claim under the FTCA. However, if this form does
not contain all the requirements of an administrative claim, then it is not a valid claim.
In addition, not all complaint letters that request money are claims under the FTCA. Some
complaint letters are simply complaint letters and should be treated as such.
All written communication from a party alleging damages and indicating an intent to sue
the United States for money damages should be checked against the requirements of claim
under the FTCA.
An administrative claim must contain a single dollar amount which represents the exact
amount of money damages demanded by the claimant. It does not have to be a reasonable
amount but it must be a number. Claims which do not contain an exact dollar amount or
contain a dollar amount with a qualifying statement such as approximately, at least,
almost, etc., do not meet the requirement of listing a specific sum.
Signature of Claimant
An administrative claim must contain the signature of the party demanding damages or
someone authorized to sign for the claimant. If someone signs the administrative claim
other than the claimant, such as an attorney or an insurance company representative,
evidence of authorization must accompany the claim signed by the claimant. A copy of a
retainer agreement, an affidavit, or a letter must accompany a claim signed by an attorney
for the claimant, signed by the claimant, authorizing this attorney to represent the
claimant in this case. A statement in a claim signed by an attorney or enclosed in a
letter that states that they are representing the claimant is not an acceptable statement
of authorization. The claimant must sign the evidence of authorization.
The FTCA obligates the claimant to identify the activity or incident which caused the
claim. The claim must contain sufficient information for the agency to identify the cause
of the complaint. This is to provide the agency an opportunity to investigate the case.
Filing a claim in a Federal or State court does not constitute an administrative claim.
An individual who initiates an action against the United States by filing a claim in a
Federal or State court is not relieved of the requirement to file an administrative claim
with the appropriate Federal agency within 2 years of the accrual of the claim.
Claimants can file three types of actions against the United States that do not have to
meet the requirements of an administrative claim. In these three actions, the United
States has already initiated a suit against the party filing the claim. The United States
has only 60 days to respond to these types of actions. Since these cases involve short
time limits, the Tort Claim Representative (TCR) must prepare a prompt response to the
Office of General Counsel's (OGC) request for an administrative report. These actions are:
A party which the United States is suing may file a counterclaim in that action. A
counterclaim does not have to arise out of the same action which caused Government's suit
but can be based on a separate incident entirely.
A cross-claim is a claim between two parties. In a cross-claim, one defendant is suing
another defendant or one plaintiff is suing another plaintiff.
Third Party Claim
In a third party suit, one party to the suit is suing another outside party. For example,
a defendant in a suit filed by the United States can file a third party claim alleging
that the liability for the damage incurred by the Government rests with a third party.
All REE offices which receive a claim for money damages, including form SF-95's or any
correspondence that shows an intent to sue for money damages, must attach the following
information to the claim:
This information is essential in determining the validity of a claim and the agency's
ability to support that determination in court.
The date used in determining compliance with the statute of limitation requirements is
the date the appropriate Federal agency received the claim. All other dates (the
date the claim was prepared, signed by the claimant, or mailed) are irrelevant. An agency
may be liable for claims that fail to meet the statute of limitation requirements if that
agency is unable to verify the date they received the claim.
The name of the individual receiving the claim and the location are also important.
Attorneys for the Government may require an affidavit from the employee receiving the
claim to support a claim denial based on failure to meet the statute of limitation
requirements.
Offices must maintain all records about the claim, accident, or incident that led to
the claim. This includes all information, papers, documents, evidence, exhibits, etc. The
agency may not dispose of any relevant information until OGC makes a determination in the
claim and closes the case. The time between the accident or incident and the trial date
may be 5 years or more.
Designated Tort Claim Representatives
(TCR)
Offices that receive and are involved with the claim must notify their appropriate TCR.
Within REE, the various TCR's are:
ARS Field Locations. The Location Administrative Officer is the designated location TCR. However, the location TCR forwards all information to the designated Area TCR for processing. In most cases the designated Area TCR is the Area Property Management Officer or other designated personal property official. The Area TCR and OGC Regional Office, will handle claims demanding money damages for $100,000 or less.
REE Headquarters and NASS Field. The Personal Property Group Leader, Procurement and Property Branch, PPD, is designated as the Agency TCR for REE Headquarters, which includes ARS-Headquarters, CSREES, ERS, NASS, and NASS- Field. The Agency TCR administers the tort claim program for the REE agencies. Also, the Agency TCR and OGC Headquarters, will handle all claims for REE Headquarters and ARS field locations claims demanding money damages that exceed $100,000.
It is the responsibility of each Federal agency to investigate all accidents or
incidents involving agency programs, employees, or cooperators that lead to the tort
claim. The responsibility for investigating claims within REE is:
This does not exclude other agency program representatives such as Area Safety and
Health Officers from conducting their own investigation. Also, the Office of Inspector
General or other Department representatives may choose to investigate cases involving
Federal criminal law violations, substantial injuries, or death.
The responsible agency will investigate any incident involving personal injury or
property damage involving a third party as soon as possible. It is not necessary to wait
until the injured party files a claim. This is particularly true in motor vehicle
accidents or incidents where there is a strong indication an injured party may file.
The investigation must identify all parties and circumstances involved. When possible,
the office will take pictures to substantiate the investigation. The investigation will
help the designated TCR prepare an administrative report and help determine agency
liability. At no time during an investigation will any agency personnel indicate or imply
liability by the Federal Government.
Memoranda of Facts and Findings
The Memoranda of Facts and Findings provides the Area or Agency TCR with all the facts
and circumstances involved in the case and provides the basis for the administrative
report. This is necessary for each claim filed under the FTCA. The location TCR prepares
the Memoranda of Facts and Findings for ARS field location and forwards it to the Area
TCR. The Agency TCR prepares when necessary, or assists the administrative officer,
division director, state statistician, or associate/deputy administrator with preparing,
the Memoranda of Facts and Findings for REE Headquarters.
Forwarding Claims to the Designated TCR
After the office completes the claim investigation, indicating the date, location, and
name of the employee, they must forward the claim to their designated TCR as soon as
possible. This includes the claim and any relevant information regarding the claim,
accident, or incident that led to the claim.
The Area or Agency TCR, in consultation with OGC, will examine all form SF-95's or
written correspondence that indicates an intent to sue for money damages. The TCR will
determine if the claim meets the requirements of a valid administrative claim under the
FTCA.
The designated TCR will notify in writing any party submitting form SF-95 or written
correspondence that does not meet the requirements of an administrative claim as soon as
possible. This notification must identify the deficiencies and cite the law supporting
that determination.
However, if the TCR does not receive a corrected administrative claim from the claimant
within 4 months after receipt of the initial claim, the TCR will contact OGC to determine
the appropriate course of action. A claimant may elect to treat 6 months after the filing
of a claim as a denial and initiate court action. (See Section 13, Lawsuits Against the
United States.) In this case, the claimant may intentionally ignore the TCR's request for
information and demand for substantiation of the claim.
If the administrative claim is in order, the TCR will acknowledge receipt of the claim,
in writing, informing the claimant or the claimant's representative that the TCR has
referred the claim to OGC and OGC will issue a final determination of the claim. (See
Exhibit 3.) The TCR will not indicate to the claimant whether the agency is assuming any
liability in the case. Agency officials are not to concede anything to the claimant about
the validity or liability of a claim. OGC will inform claimants if their claim meets all
the requirements of an administrative claim and will also issue a determination of a claim
and communicate that determination to all parties involved.
Substantiation of Claim
The FTCA requires all claimants to substantiate any claim filed against the United States.
If the administrative claim lacks sufficient information to substantiate the claim, the
Area or Agency TCR will require the claimant, or the claimant's representative, to provide
additional evidence to substantiate the claim. The TCR must request this information in
writing, citing the FTCA and appropriate regulations. However, the TCR or OGC cannot make
a determination while there is an outstanding substantiation request.
During the investigation the designated TCR has the option of initiating contact with
the claimant to request information. The contact may be in the form of a letter or a
request for an interview with the claimant or the claimant's representative, family,
friends, etc. A request for information is limited to the facts and circumstances
surrounding the incident, facts that lead to the alleged negligence, or wrongful act or
omission.
Unlike a demand for the substantiation of claim, the request for information implies no
obligation on the part of the person asked to respond to or provide the requested
information. A letter requesting information must not assert the agency's rights to
receive a response. It must be in the form of a request (i.e., “In order to assist
our investigation, we would appreciate your assistance in answering the following
questions”). The claimant does not have to respond to a request for information or
grant an interview. Any attempt to initiate contact with a claimant, the claimant's
representative, family, friends, etc., is limited to cases where the office receives
evidence of an intent to sue the Federal Government.
In circumstances where the potential claimant has not submitted a claim and it is
unclear whether the third party will sue the Government, the investigator will not
initiate contact with the third party, relatives, or friends. In these cases, contact is
limited to other parties involved, such as employees, the police, eyewitnesses, etc.
If the TCR receives any communication from an attorney representing the claimant, all
correspondence relative to the case must be sent through the attorney. This is also true
if an attorney forwards the claimant's letter or form SF-95. At times the only indication
that an attorney is representing a claimant is when the return address on the envelope is
the attorney's address.
As stated earlier, the Memoranda of Facts and Findings provides the Area or Agency TCR
with all pertinent facts and circumstances involved in the case. The Area or Agency TCR
will prepare an administrative report based on Memoranda of Facts and Findings. The
location TCR prepares the Memoranda of Facts and Findings for ARS field location and
forwards to the Area TCR. The Agency TCR will prepare when necessary, or assist the
administrative officer, division director, state statistician, or associate/deputy
administrator in preparing the Memoranda of Facts and Findings for REE Headquarters and
NASS field offices. Memoranda of Facts and Findings consists of: (See Exhibit 4)
Background Information. The background information must provide information to
support the official program that was involved in the incident associated with the claim.
This will help determine if the Federal employee was operating in the scope of his/her
employment.
Analysis of Events. The incident analysis must contain detailed analysis of the
events that occurred that lead to the incident and any factors that were discovered during
the investigation.
Relevant Documentation. The Memoranda of Facts and Findings must contain all
documents, files, and photographs associated with the claim.
The TCR will prepare an administrative report for each valid claim filed under the FTCA.
(See Exhibit 5.) The administrative report provides OGC with all the facts and
circumstances surrounding the case. The TCR will prepare the report ensuring it contains
all the information required for OGC and the Department of Justice (DOJ) to issue a
determination in the case and defend that decision in court. The TCR must also attach all
documents and pictures relating to the case and forward the administrative report to OGC
in triplicate. Do not send the original copy of any evidence, exhibits, etc. Make copies
of the documents for attachment to the administrative report. The TCR will keep all
original documents for litigation if the claim goes to court. The TCR prepares the
administrative report, in narrative format, containing the following:
Examples of relevant documentation that may be necessary for property damage include:
Forwarding of Claim and Claim Files to OGC
The TCR will forward the tort claim and administrative report, including copies of all
relevant information (mentioned above) to OGC for claim determination. OGC will base the
claim determination upon receiving and reviewing the completed administrative claim and
the associated documents substantiating the claim. (See Exhibit 6, List of OGC Regional
Offices.)
OGC will determine whether claims are allowed, compromised, or denied and will
appropriately notify claimants. If a claim is allowed in full or compromised, OGC will
notify the Area TCR in writing and begin the payment process.
If OGC denies a claim, they will notify the claimant and the claimant's attorney or
legal representative. The notification will include a statement that if the claimant is
dissatisfied with the Department's action, he/she may file suit in a U. S. District Court
not later than 6 months after the date the notification was mailed.
Regardless of the amount originally claimed, OGC approves awards that do not exceed
$25,000. However, the Attorney General must approve awards that exceed $25,000. OGC will
take the necessary actions to obtain this approval.
OGC will notify the TCR, in writing, after they approve a claim for payment. This
written notification will include an Allowance of Tort Claim which identifies the amount
authorized for payment. Payments of $2,500 or less are paid through the appropriation of
the agency's activity that led to the claim. Payments that exceed $2,500 are paid through
the Judgment Fund, Financial Management Services, Department of Treasury. Two-party
payments are no longer issued. Payments are issued in the name of the claimant, however
“in the care of” may be added when an attorney is involved.
Payment Procedures for Tort Claims $2,500
or Less
After written notification from OGC, the TCR:
Payment Procedures for Tort Claims
Exceeding $2,500
Payment under the Judgment Fund was transferred from the General Accounting Office
(GAO) to the Department of the Treasury, Financial Management Services. The guidance does
not vary substantially from GAO guidance; however, payment authorizations are made using
different forms. The forms are not available through standard forms channels, but agencies
can photocopy forms as necessary. (See Exhibit 8 for photocopy.) The forms are also
available through the Internet at the Department of the Treasury, Financial Management
Service's website at http://www.fms.treas.gov
The appropriate OGC attorney prepares form FMS-195, Judgment Fund Payment Request, form
FMS-196, Judgment Fund Award Data Sheet, and form FMS-197, Voucher for Payment of
Judgements, Compromise Settlements, and Administrative Awards, for awards exceeding
$2,500. (See Appendix 8A, B, & C, respectively, for completed forms.) OGC completes as
much of the form as possible and forwards the package to the appropriate TCR for
completion. The TCR:
It will take approximately 6 weeks for FMS to process payment of claims. If you have
not received any information after 6 weeks, the TCR can call the Judgment Fund Branch
(number above). The Judgment Fund Branch will need specific case information such as the
specific spelling of the case name, the date the claim was sent, and the amount of the
award.
To help ensure prompt processing of claim payments to FMS, the TCR should:
The acceptance by a claimant of any award, compromise, or settlement is final and
conclusive on the claimant and constitutes a complete release of any claim against the
United States and against the Government employee whose act or omission led to the claim.
The TCR must retain copies all memoranda, reports, exhibits, and other documents
supporting the settlement of a claim and make them available to GAO and the Treasury
Department for audit purposes. TCR's cannot destroy or send the records to the Federal
Records Center until after the matter is officially closed. USDA Records Management
Regulations, ASAR 3040-1, states agencies can dispose of files 1 year after final
settlement/disposition of the case, or 1 year after the 2-year statutory limitation on the
filing of claims expires.
Lawsuits Against the United States
There are two instances where the injured party, after submitting an administrative
claim, can file suit against the United States in a Federal District Court. They are:
The DOJ will represent the United States and the Federal agency whose actions led to the
complaint. OGC's role is to take the claim through the administrative claim process. Once
a claim reaches court, OGC serves as a background and support resource for DOJ.
Lawsuits Against an Employee of the
Federal Government
Claimants may only sue the United States under the FTCA. REE agencies, various REE
programs, and employees cannot be sued under the FTCA. However, this does not prevent a
claimant from suing employees in their official capacity or their individual capacity.
Official Capacity. An employee may be named as a defendant in a suit against the
United States when the claimant seeks damages only against the United States. Employees
are named in the suit because of their official involvement with the case.
Individual Capacity. A claimant may file suit in court against an individual
employee of the Federal Government seeking money damages from an accident or incident
which may or may not involve actions taken within the employee's scope of employment. The
suit is not against the United States but seeks money damages from the individual
employee.
If the action or activity which led to the suit was within the outer perimeter of the
employee's duty, the employee may receive legal representation from DOJ. To arrange
representation, OGC must forward a request for representation on behalf of the employee to
DOJ. Submitting this request is strictly voluntary. Employees may provide their own
attorneys. DOJ will make the final determination on a request for representation.
Before OGC submits the request to DOJ, employees must acknowledge that if found liable
by the courts, they must pay the damage. The United States is not authorized to pay for
damages in a judgment brought against employees sued in an individual capacity. Employees
are responsible for their own legal representation in court if OGC declines to submit a
request for representation or DOJ denies the request.
The first step in initiating a lawsuit against the United States is filing a complaint
in Federal District Court. A complaint asks for damages or other relief and sets
forth the basis for relief. A summons is notification that the individual, or a
representative of the United States or the agency, is named in a complaint and must appear
in court on the specified date named to respond to the complaint. An agency involved in a
lawsuit against the United States is notified of the suit when a representative of that
agency or an individual employee receives a complaint or a summons. Most complaints or
summonses involving Federal agencies are sent directly to OGC. Should an individual
employee or agency representative receive a complaint or summons, the employee must
immediately contact their TCR who will immediately contact OGC. A summons or a complaint
against an employee in that employee's individual capacity, filed in a Federal or State
court, requires a response within 20 days of the date mailed or served. A summons or
complaint against the United States or involving a Federal employee operating within that
employee's scope of employment, filed in Federal District Court, requires a response
within 60 days. (For other judicial orders that do not appear to fall under the category
of tort claims, e.g., a subpoena for expert testimony, please refer questions to the Human
Resources Division, ARS/AFM.)
OGC will notify the Agency TCR of all tort claim related complaints or summonses
involving their agency. The notification will include a copy of a form letter, a copy of
the complaint, and the name of the OGC attorney handling the case. In most cases the
complaint will be generally the same as the administrative claim. If the agency has any
new information or new developments to add before OGC responds, the TCR must contact OGC
immediately and forward this information.
Discovery is a chance for each side in a suit to examine the other side's case. This
allows each side to see the facts and circumstances involved in order to attempt to reach
a settlement before the case goes to trial. There are four main types of discovery:
Motion to Determine a Lawsuit Prior to
Discovery
In order to avoid the lengthy discovery process, DOJ may file a motion to determine a
lawsuit prior to discovery. For these types of cases, the motion is a request to the judge
to dismiss or for a summary judgement.
Motion to Dismiss. The United States has 60 days to answer a complaint filed in
Court. The answer is either an admission of liability, a denial, or a denial from lack of
information. In lieu of an answer, DOJ may submit a motion to dismiss because the claimant
failed to meet the statute of limitations or the claim falls within the exclusionary
category. The United States does not have to file a motion to dismiss at the beginning of
litigation. The United States may file after discovery or after reviewing all the
information supporting the claim.
Motion for Summary Judgment. A motion for summary judgment alleges that there
are not material facts in dispute and that, as a matter of law, one side should get the
judgement in its favor.
The final step before trial is the preparation of a pretrial statement. A pretrial
statement is a statement of factual and legal issues that are agreed upon and those that
are in dispute. Also included is a statement about the possibility of settlement. DOJ and
OGC may require the TCR to provide additional information for the pretrial statement.
During the preparation and filing of the pretrial statement, DOJ may request the TCR's
assistance. This may include providing additional information found during the discovery
process and selecting and preparing witnesses for trial. Since the trial may take place 4
or 5 years after the incident that led to the claim, a fair amount of time is necessary to
locate, prepare, and arrange transportation for witnesses. Usually, there is a last minute
attempt to settle before the trial actually begins.
Trial
The Federal District Court Judge will try all cases against the United States. The
defendants do not receive a trial by jury.
Agency Tort Claim Representative (TCR)
Area Tort Claim Representative (TCR)
Location Tort Claim Representative (TCR)
REE Supervisor
REE Employee
Administrative Claim. A written request for money damages, indicating a specific
dollar amount, signed by the claimant or someone authorized to sign on the claimant's
behalf. The claim identifies the circumstance which gave rise to the claim and is
submitted to the Federal agency whose actions led to the claim.
Accrual date. A date of the incident causing the loss or damage or when the loss
or damage is, or should have been, discovered by the claimant.
Agency Tort Claim Representative (TCR). The ARS, AFM, PPD, PPB, Personal
Property Group Leader is the designated individual who oversees the tort claim program for
the REE agencies; processes tort claims filed against REE Headquarters, which includes
ARS- Headquarters, CSREES, ERS, NASS, and NASS-Field.
Area Tort Claim Representative (TCR). In most cases, this is the ARS Area
Property Management Officer or other personal property official who is designated as the
tort claim representative for the Area.
Counterclaim. A claim filed in opposition to another claim.
Complaint. A legal document filed with a court asking for damages or other
relief and setting forth the basis for such relief.
Cross-claim. A claim between two parties, either between one defendant suing
another defendant or between one plaintiff suing another plaintiff.
Discovery. Data or documents that a party to a legal action is compelled to disclose
to another party either prior to or during a proceedings.
DOJ. Department of Justice.
Form FMS-195. (Local Reproduction). Judgment Fund Payment Request
(Administrative Award).
Form FMS-196. (Local Reproduction). Judgment Fund Award Data Sheet.
Form FMS-197. (Local Reproduction). Voucher for Payment of Judgments, Compromise
Settlements, and Administrative Awards.
Form SF-95. (Available in Informs). Claim for Damage or Injury.
FTCA. Federal Tort Claims Act.
Location Tort Claim Representative (TCR). The ARS Location Administrative
Officer.
Negligence. The performance of some act which a person of ordinary prudence
would not have done under similar circumstances, the failure to do what a person of
ordinary prudence would have done under similar circumstances, or conduct which falls
below the standard established by law for the protection of others against unreasonable
risk or harm.
OGC. Office of General Counsel.
Omission. The intentional or unintentional failure to act which may impose
liability depending upon the existence of a duty to act under the circumstances.
Summons. A process directed to the sheriff or other proper officer requiring the
officer to notify the person named that an action is filed against the person and that the
person must appear in Court on the specified day to answer the complaint.
Third Part Claim. One party to a suit suing another outside party.
Tort. A violation of an individual's rights, other than a breach of contract, which
results in a loss of property, property damage, personal injury, or death.
Tort claim. A written request for money damages, indicating a specific dollar
amount, resulting from the violation of an individual's rights, other than a breach of
contract, which has caused a loss of property, property damage, personal injury, or death
to the claimant.
TCR. Tort Claim Representative.
Wrongful act. When a private person complains of injury or loss of property or
personal injury or death alleged to be caused by the negligent or wrongful act or omission
of an agency employee and expresses an intention to seek monetary compensation for damages
from the Government, the agency must inform the person of procedures for filling a claim
under the FTCA.
-Sd-
W. G. HORNER
Deputy Administrator
Administrative and Financial Management
Exhibits
Administrative Claim
1234
Riverside Drive
Brownsville,
New Jersey 20411
June
8, 1998
USDA, ARS
North Atlantic Area Office
890 Campus Drive
Philadelphia, PA 20250
Dear Sir:
On June 7, 1998, an employee of your department, while driving a truck through the
intersection of Route 1 and Main Street in Brownsville, New Jersey, drove through a red
light and struck my car. My car was damaged and I was injured.
Since the accident was the fault of your employee, I demand the sum of $1500 for damage
to my truck and the sum of $15,000 for my personal injuries, which consisted of a broken
leg.
Sincerely,
Daniel J. Smith
(THIS IS AN ADMINISTRATIVE CLAIM UNDER THE FEDERAL TORT CLAIM ACT)
Form SF-95, Claim of Damage or Injury
Letter Acknowledging Claim Receipt
Robert Jones
Attorney at Law
Rout 1, Box 987
San Diego, California 00000
Subject: Claim of William Smith
Dear Mr. Jones:
This letter acknowledges receipt of the Standard Form 95, Claim for Damage or Injury,
you submitted on behalf of your client, William Smith. The Federal Tort Claims Act (FTCA),
28 U.S.C. 2671-80 and the regulations issued under 7 CFR 1.51 and 28 CFR
14 establish the manner for filing an administrative claim under the FTCA. The Standard
Form 95 that you submitted on behalf of your client does not constitute an administrative
claim under the FTCA.
Pursuant to the provisions of 28 CFR 14.2, an administrative claim must be for money
damages in a certain sum. The claim on behalf of your client is not for money damages in a
certain sum. Furthermore, according to the provisions of 28 CFR 14.3, an administrative
claim for injury to or loss of property must be submitted by the owner of the property or
his duly authorized agent or legal representative. A claim for personal injury must be
submitted by the injured person or his duly authorized agent or legal representative.
Therefore, in order to file an administrative claim under the FTCA, you must submit a
claim for money damages in a certain sum and signed by the claimant or signed by a duly
authorized agent or legal representative, if accompanied by proof of authorization to
submit the claim.
You must also substantiate the claims of personal injury and property damage. The
provisions of 28 CFR 14.4 establish the manner to substantiate claims. To the extent that
the listing of evidence fails to be appropriate for the type of injuries or damages
claimed by your client, please supply analogous material sufficient to substantiate each
element of your client's damages.
The Office of the General Counsel has authority to consider and determine claims under
the FTCA. Upon receipt of an administrative claim meeting the requirements of the FTCA and
appropriate substantiation of damages, OGC will be in a position to issue a determination
upon your client's claim. Enclosed are two (2) copies of Standard Form 95.
Sincerely,
AGENCY OFFICIAL
Enclosures
Memoranda of Facts and Findings
SUBJECT: Memoranda of Facts and Findings
Tort Claim - J. J. Smith
TO: Larry Evans
Area Tort Claims Representative (APMO)
FROM: Jane Davis
Location Administrative Officer
The following information is being provided in compliance with the Federal Tort Claims
Act, Manual 227.1, Section 7.
1. BACKGROUND INFORMATION
The Agricultural Research Service is authorized to conduct soil research for increased
efficiency in the use of grassland for the grazing of cattle and the determination of soil
erosion. The need to obtain weather reports is crucial in determining the amount of rain
water expected.
| A. Incident Date: | June 6, 1998 |
| B. Incident Location: | Intersection of Main Street and West Street Minneapolis, Minnesota |
| C. Claimant: | J. J. Smith 910 St. Paul Street Minneapolis, Minnesota 98653 |
| D. Claimant's Legal Representative: |
Raymond List 712 West Avenue Minneapolis, Minnesota 98653 |
| E. Federal Employee Involved: |
J. P. McDay USDA, ARS, Soil Laboratory Minneapolis, Minnesota 98765 |
| F. Employee's Supervisor: | J. P. Park USDA, ARS, Soil Laboratory Minneapolis, Minnesota 98765 |
2. INCIDENT ANALYSIS
A. On June 6, 1998, J. P. Park instructed J. P. McDay to collect
research data from a weather station located at the University of Minnesota.
B. Mr. McDay was issued a Government vehicle, tag number A-567890,
to accomplish the task.
C. While enroute to the University, Mr. J. P. McDay failed to stop
for the red traffic signal at the intersection of Main and West Streets and collided with
a vehicle operated by J. J. Smith.
D. Mr. Smith sustained injuries as a result of the accident and was
transported by ambulance to the city hospital
E. Mr. A. B. Charles, a pedestrian at the scene of the accident,
was a witness and has provided a witness statement of the accident.
3. DOCUMENTATION
Attached are documents associated with the tort claim.
Attachment A - Photographs of the accident site
Attachment B - Witness Statement
Attachment C - Accident Report
Attachment D - Copy of police report
Administrative Report
TORT CLAIM
Motor Vehicle Accident - Claimant: J. J. Smith
Account of Accident
The accident took place at 9:00 a.m., Wednesday, June 6, 1998. The claimant, J. J.
Smith, owner and operator of a 1992 Dodge van was traveling eastbound on Main Street,
Minneapolis, Minnesota, approaching the intersection of West Street. The intersection is
controlled by a traffic signal. The traffic signal indicated green for Main Street and was
red for West Street. As Mr. Smith entered the intersection, a Government vehicle failed to
stop for the signal and collided with Mr. Smith.
The Government vehicle, a 1996 Chevrolet, pick-up truck was operated by J. P. McDay.
Mr. McDay is a permanent full-time employee of the Agricultural Research Station, St.
Paul, Minnesota. At the time of the accident, Mr. McDay was enroute to collect research
data from a weather station located at the University of Minnesota. The trip was
authorized by his supervisor, J. P. Park, Research Leader. It is appropriate to use West
Street in order to reach the University of Minnesota.
The accident was investigated by Officer Robert Ward, Minneapolis Metropolitan Police.
Mr. McDay was cited for failing to obey the traffic signal. (Attachment B.)
Mr. Smith was transported by ambulance to St. Agnes Hospital for treatment. Mr. McDay
was not injured in the accident.
A. B. Charles, a pedestrian at the scene of the accident, was a witness and has
provided a witness statement for the accident. (Attachment C.)
Claim for Damage
On July 3, 1998, we received a letter (Attachment A) and a completed Form SF-95 form
Claim for Damage or Injury, from Mr. Smith dated June 30, 1998. The claim was based on
injuries and property damages in the amount of $54,000. (Attachment A.)
Injury Claim
Mr. Smith received treatment from St. Agnes Hospital for injuries received in the
accident. Injuries included lacerations and fractures to the head and back. Copies of
invoices are included. (Attachment D.)
Medical bills:
Dr. S. Lloyd $30,000.00 X-ray Bills 5,000.00 Emergency Room 2,000.00 Dr. B. Block 10,000.00 Total Medical Bills $47,000.00
Property Damage Claim
Repair estimates from two automobile body repair facilities for Mr. Smith's car. The
lowest estimate is in the amount of $7,000.00 (Attachment E.)
Total claim $54,000.00
Determination of Fault
After reviewing the facts of this case, we have determined the Government employee to
be at fault and recommend awarding the claim.
With regard to policy considerations, a determination of liability in this case will
not impact the ability of ARS to perform its mission. ARS is not a party to any other Tort
Claim involving the claimant and is not aware of any claim the Department may have against
the claimant.
5 Enclosures
List of OGC Regional Offices
| OGC Field Office | Service Area |
| Albuquerque, New Mexico
87102 (ALB) 4017 Federal Building 517 Gold Avenue, SW Phone: (505) 248-7379 |
New Mexico |
| Atlanta, Georgia 30365
(ATL) 1718 Peachtree Street, NE Suite 576 Phone: (404) 347-1060 |
Kentucky, Tennessee, South Carolina, Georgia, Florida and North Carolina |
| Chicago, Illinois 60604
(CHI) 230 South Dearborn Room 2920 Phone: (312) 353-5640 |
Illinois, Michigan and Indiana |
| Columbus, Ohio 43215
(COL) 200 North High Street Room 209 Phone: (614) 469-2455 |
Ohio |
| Denver, Colorado 80215
(DEN) P.O. Box 25005 740 Simms Street, Suite 309 Golden, CO 80401 Phone: (303) 275-5555 |
Colorado and Wyoming |
| Harrisburg, Pennsylvania
17108 (HAR) 440 Federal Building 228 Walnut Street P.O. Box 1134 Phone: (717) 221-3713 |
Maine, Vermont, New
Hampshire, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland,
Delaware, Washington, DC, West Virginia, Virginia and Massachusetts |
| Hato Rey, Puerto Rico
(PR) Rm. 503 159 Chardon Avenue Phone: (787) 766-5200 |
Puerto Rico |
| Juneau, Alaska 99802
(JUN) P.O. Box 21628 709 W. 9th Street, Room 913 Federal Building Phone: (907) 586-8826 |
Alaska |
| Kansas City, Missouri
64141
(KC) P.O. Box 419205 or 8700 State Line Road, Suite 150 Leawood, KS 66206-1940 Phone: (913) 381-2808 |
Iowa, Kansas, Missouri, Oklahoma and Nebraska |
| Little Rock, Arkansas
72201 (LR) 3201 Federal Building 700 West Capitol Street Phone: (501) 324-5246 |
Arkansas, Louisiana and
Mississippi |
| Milwaukee, Wisconsin
53203 (MIL) Henry Reuss Federal Plaza, Suite 200 310 West Wisconsin Avenue Phone: (414) 297-3774 |
Wisconsin |
| Missoula, Montana 59807
(MIS) Federal Building, Room 205 340 North Pattee Street P.O. Box 7669 Phone: (406) 329-3066 |
Montana |
| Montgomery, Alabama
36104 (MONT) Sterling Centre 4121 Carmichael Road, Suite 205 Phone: (334) 279-3650 |
Alabama |
| Ogden, Utah 84401
(OGD) 507 25th Street, Room 205 Phone: (801) 625-5441 |
Utah |
| Portland, Oregon 97204
(POR) 1734 Federal Building 1220 S.W. 3rd Avenue Phone: (503) 326-3115 |
Oregon, Washington and Idaho |
| Richmond, Virginia 23229
(RICH) Culpeper Bldg., Suite 239 1606 Santa Rosa Road Phone: (804) 287-1611 |
Virginia |
| San Francisco, CA 94105
(SF) 33 New Montgomery, 17th Floor Phone: (415) 744-3011 |
California, Nevada, Arizona, Hawaii and Guam |
| St. Paul, MN 55114
(SP) 416N Court International Bldg. 2550 University Avenue W. Phone: (612) 646-6013 |
North Dakota, South Dakota And Minnesota |
| Temple, Texas 76501
(TEM) Suite 351 W. R. Poage Federal Office Bldg. 101 South Main Phone: FTS 736-1204 |
Texas |
Form SF-1145, Voucher For Payment Under FTCA
Payment of Claims $2,500 or less
Payment of Claims Exceeding $2,500
Includes:
8A- Sample of Completed Form FMS-197, Voucher for Payment
8B - Form FMS-197, Voucher for Payment (For Photocopy)
8C - Form FMS-196, Judgment Fund Award Data Sheet (For Photocopy)
8D - Form FMS-195, Judgment Fund Payment Request (For Photocopy)
NOTE: As of the date of the P&P, these forms are available via the Internet at the
Department of the Treasury, Financial Management Service's Home Page at:
http://www.fms.treas.gov
