How to Sue the United States for Personal Injury
Introduction: Where There’s a Military Presence, There Are Federal Employees, Which Means There’s Federal Tort Claims …
The two most sued defendants in America are the United States and Walmart. Suing the United States in a personal injury case is not as easy as simply filing a lawsuit. The issue of suing the United States arises anywhere there is any military presence in any city. This is because military bases produce federal employees and installations. Federal employees drive cars that sometimes hit people. Sometimes, federal employees do not clean up the floors of a commissary. This leads to people getting injured, which means that the United States is the ultimate defendant in such a matter.
The Federal Tort Claims Act Permits an Injured Person to Sue Uncle Sam!
In order to sue the United States for personal injury, the injured person, “i.e., the Plaintiff,” must go through an administrative process under the Federal Tort Claims Act. The Federal Tort Claims Act is essentially a waiver of sovereign immunity by the United States government. See generally:
- 28 U.S.C. 1346 (b),
- 28 U.S.C. 1402 (b),
- 28 U.S.C. 2401 (b),
- 28 U.S.C. 2402,
- 28 U.S.C. 2671 – 2680
Code of Federal Regulations
- 28 C.F.R. 14.1 – 14.11
Department of Army Regulations
- 35 C.F.R. Part 256
Procedural Aspects of Suing the United States for Personal Injury
Statute of Limitations & the Form 95
In order to actually file suit, you have to go through the administrative procedure involving a Form 95. This is required pursuant to 28 U.S.C. 2401 (b). The Form 95 must be filed out completely (28 C.F.R. 14.2(a)), signed by the claimant (Id.), and must demand a sum certain. The Form 95 is a statute of limitations. You must present the Form 95 to the appropriate federal agency within two years.
That tolls the statute of limitations and triggers a moving statute of limitations. If the government does nothing for 6 months, you can file your lawsuit at that time. If the United States denies the claim finally, then you have 6 months to file your lawsuit in the appropriate federal district court.[gview file=”https://lawyermarkjones.com/wp-content/uploads/2014/01/SF-95.pdf”]
The United States must be served within the 6 month window. Weisgal v. Smith, 774 F.2d 1277 (4th Cir. 1985). Both the Attorney General and the US Attorney for the district in which the action is brought. FRCP 4(i)(1).
Mailing is not presentment. Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985). Receipt of the Form 95 is presentment. The Department of Army, at least in my experience, is generally good about responding and letting you know whether they have received a proper Form 95 and the statute is tolled.
No Jury Trials
A claim under the FTCA is in front of a judge. There are no juries in FTCA claims. 28 U.S.C 2402.
Relief is limited to money damages. There are no punitive damages. 28 USC 2674.
Controlling Law: the law of the state applies. Richards v. United States, 369 U.S. 1 (1962).
Discretionary Functions Barred
You cannot sue the government for purely policy or “discretionary” functions. 28 U.S.C. 2680(a).
Attorneys Fees: The FTCA limits the recovery of attorney’s fees to 20% of the total recovery.
Conclusion: To Sue Uncle Sam, You Have to Jump Through Quite a Few Hoops
The most important thing about these claims is the Form 95. In Lawyer Mark Jones’ experience in dealing with claims arising on post at Fort Benning, Georgia, it sometimes works best to present a formal demand package with your Form 95. This will allow for the proper evaluation of your claim. Then, you have your six months to file suit.
The last FTCA case I handled, I served quite a few people, including the AUSA assigned to civil claims as well as the Attorney General and the US Attorney for the Middle District.
If you have been hurt on post at Fort Benning or at another military installation, contact Lawyer Mark Jones today for a free consultation regarding your claim. Time is of the essence on these claims! Call Mark today at 706-225-2555.