6/21/2016

Claims Against the Government

How to start, how to avoid roadblocks, and when to give up on claims against Uncle Sam.

By Leslie Hulburt , Marisa Saber

With tax season firmly in the rearview mirror, more red tape and government forms may be the last thing on your mind. But do not overlook potential tort claims or contract claims against the government because you are confused by the process. Yes, there are specific forms you need to fill out, and your claim may get passed from person to person. And yes, there are deadlines. Yet with the right road map, the claims process can be mastered. Just like with your taxes, the end result could be the government sending you money.

Suing either the state or federal government is usually a two-step process. First, there is an administrative stage involving claims forms and an investigation. Second, there is the litigation stage. We will look at the typical parts of both stages so that you can successfully bring a claim against the government. In some circumstances, the government will be immune from liability. At the end of this article, we will discuss these immunities so that you can recognize them and avoid wasting time and resources on a claim that ultimately will be unsuccessful. 

Part One: Administrative Claims 

Tort claims. Claims against the government usually will be directed at the federal government or the state government. The rules for state claims vary but loosely follow the framework that the federal government uses for its claims. The rules for a tort claim against the federal government are explained in the Federal Tort Claims Act (FTCA). 

The first step to preserving your claim is to submit an official claim. The claim form is called the Standard Form 95 (SF 95). Often, if you send a traditional notice letter to a government agency, the agency will respond with a packet of forms that need to be completed, along with instructions on how to complete the forms and where they should be sent. You also may complete a form designating an attorney to handle your claim. 

The SF 95 must be filed within two years of the loss. The government then has six months to review the loss and determine whether it will accept liability and pay your damages. If the government has not provided a written denial after six months, the claimant may then proceed with litigation. If a written denial is received, the claimant has six months to file a complaint in court. 

When completing the SF 95, pay careful attention to the section on your total claim. The actual amount of your damages must be listed on the SF 95. You also should attach papers to the form supporting your damages. The government will not be liable for amounts in excess of what is listed on the SF 95. 

Once you file your form, the government will send you a letter acknowledging receipt. It is important to keep a copy of the SF 95 you file as well as all correspondence from the government. If you do not resolve the claim at the administrative stage, you will need this paperwork to support your right to file a lawsuit in court. 

As part of the initial investigation and claims phase, it is helpful to make a request for documents under the Freedom of Information Act (FOIA). Making a FOIA request serves two purposes: (1) obtaining documents to support your case and legal theories and (2) getting the attention of the government. 

To make a FOIA request, you send a letter to the government entity you are pursuing (e.g., Army, National Guard, Marines) stating that, under FOIA, you are requesting all documents related to your incident. As with any loss, you will want to send a letter requesting the government preserve the evidence. It is not uncommon for the government to complete its investigation before your expert is allowed access to the evidence. Depending on the size of the loss, you may want to have an attorney assist with obtaining access to the evidence. 

If you are pursuing a claim against a state or local government entity, you will want to first find the statute that governs the claim. Similar to the FTCA, states and local entities also will have their version of a governmental claims act. This law will explain the deadlines and procedures for filing your claim. Most states, but not all, require some sort of administrative claim before litigation can commence. The deadlines are not identical to the FTCA, so it is important to identify the correct law. Just as with the FTCA, for a state claim, you can designate an attorney to handle the claim even at the administrative stage. 

Contract claims. Your company may insure entities that commonly contract with federal or state governments for goods or services. A claim involving a federal or state breach of contract may arise and can be pursued, but the rules are different from the tort claims explained above. 

The Tucker Act is a federal statute that waives federal government immunity for contracts the government enters with private individuals or entities. Contract claims against the federal government are governed by the Contract Disputes Act (CDA). An administrative claim under the CDA must be filed within six years of the breach of contract, and there is no specific form. Instead, the CDA statute lays out the required information that must be included in a claim and then submitted directly to the government actor who signed the contract—known as the contracting officer. The contracting officer then has 60 days to respond to the claim by accepting the claim, denying the claim, or requesting further information. 

If you are pursuing a contractual claim against a state or local government entity, you need to find the state statute that governs the claim. States and local government entities likely will have a version of a government contractual claims act. This law will explain the deadlines and procedures for filing a claim. Similar to a tort claim, most states, but not all, require some sort of administrative claim before litigation can commence. 

Part Two: Litigation

Tort claims. If the government denies your claim or six months have passed, you may file a complaint in federal court. You will need to prove that you have completed the administrative steps discussed above. State requirements vary according to state law, but generally, you also must satisfy administrative steps before litigation. Additionally, states often will have specialized causes of action or pleading requirements for government claims. 

Once you are in litigation, one of the most common defenses argued by the federal government is that the action that led to the harm was “discretionary.” The FTCA states that, if a government official’s action was discretionary, the government is not liable if the act was negligent. Courts most likely will find a decision discretionary if it is a judgment call. For example, a government agency may decide to allow a wildfire to burn in order to consume brush, but later, winds pick up and cause the fire to spread to nearby homes. The decision to allow the fire to burn likely would be considered discretionary, which means the government would be immune from liability. It is important to understand that the question is not whether the discretionary act was a good or bad judgment call but, rather, whether the person making it had the authority to use his or her discretion. 

The easiest way to prove that an action was not discretionary is by reference to government guidelines or manuals. For example, if the Army has a manual stating that target practice should not be conducted during “code red” weather conditions, this can be used as evidence that the choice to conduct target practice during those conditions was not discretionary. In other words, if you can prove that a direct government rule or guideline was not followed, you will have an easier time winning your case. 

This is where your FOIA request can prove to be very helpful. Typically, the government investigates a loss and issues a report. These reports can be obtained through the FOIA request. If there was no investigation, you can still request all manuals or guidelines relevant to the incident. 

Contract claims.When pursuing a claim for breach of contract against the federal government, if the contracting officer denies your CDA claim, the private individual or corporation must either file an appeal with the Board of Contract Appeals within 60 days of the denial or file suit in the U.S. Court of Federal Claims within 12 months of the denial. 

An appeal filed with the Board of Contract Appeals will be resolved by a type of administrative board, similar to an arbitration panel. A suit brought in the U.S. Court of Federal Claims will be resolved by the judge who is assigned to the case; there are no jury trials in this court. 

Like many rules relating to contract breaches, the federal government requires that a suit brought against it for a contract breach be brought by the individual or entity that is in privity of contract with the government. If the private individual or entity chooses to make a claim with its own insurance carrier instead of itself going through this claims process, subrogation can still be pursued by the insurance carrier as a type of “pass through” claim, in which the carrier sues in the name of the insured and the insured brings the claim “for the use and benefit of the insurer.” 

Part Three: Immunities 

Litigation can be expensive. Before filing suit, you should evaluate whether the government is immune. Generally with contract claims against the government, the government officer entering into the contract with the private individual or entity is able to waive complete immunity against the government. In cases of torts, there are cases in which the government will not be liable under any circumstances. These instances are typically laid out in the statutes on government claims. For example, often you cannot bring any claim related to firefighting activities, latent defects connected to roads or drains, failure to revoke building permits or other licenses, or a natural condition on public land. Immunities vary state by state. Initiating the administrative claim is not very expensive, but before embarking on litigation, a careful evaluation of applicable immunities should be made.

Similar to your taxes, the biggest hurdle in pursuing a claim against the government is often getting started. The first step is to identify the applicable law, whether it is the Federal Tort Claims Act, Contract Disputes Act, or a similar state government claims act. Once the law is identified, make note of your deadlines. Typically, there are three: (1) a deadline to file an administrative claim, (2) a deadline for the government to respond to your claim, and (3) a deadline to file suit or appeal if your administrative claim is denied. Once you have these dates in mind, file your claim, take advantage of FOIA requests, and keep copies of all your papers!



Leslie Hulburt is a member of CLM Member Firm Cozen O’Connor. She can be reached at lhulburt@cozen.com.

Marisa Saber is a member of CLM Member Firm Cozen O’Connor. She can be reached at msaber@cozen.com

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