Working Your Way Through The Federal Thicket

Before a plaintiff may bring a claim under the Federal Tort Claims Act, she must first have made a claim to the pertinent federal agency and received a final denial of that claim. O’Brien v. United States, 137 Fed. Appx. 295, 300-01 (11th Cir.2005). Normally, this is done by filing a Standard Form 95 or other written notification of the incident accompanied by a claim for money damages in a sum certain with the relevant federal agency. See 28 U.S.C § 2675 (a). The plaintiff may also amend her Form 95 to a final decision by the agency or any time within the six-month window. 14 C.F.R. 15.3 (d).

The plaintiff’s claims in her complaint are limited, however, to the claims contained in her Form 95. If the plaintiff failed to put the agency on notice of a particular claim in her Form 95, she will be forever barred for bringing that claim in the district court. Therefore, the question becomes how specific must a Form 95 be in order to preserve any and all claims against the federal agency.

At he heart of the FTCS’s exhaustion requirement is notice. Torjagbo v. United States, 2007 WL 1970867 (M.D.FL.July 3). The notice requirement is met if the claimant (1) gives the agency written notice of his or her claim sufficient to enable the agency to investigate and (2) places a value on his or her claim.  Marrione v. United States, 697 F.Supp. 874, 876 (E.D.Pa. 1988). Though a claimant is not required to provide  the agency with a preview of his or her lawsuit by reciting every possible theory of recovery, or every factual detail that might be relevant (Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir. 1999), she must give enough information to allow the federal agency a fair opportunity to investigate and possibly settle the claim before the parties must assume the burden of costly and time-consuming litigation (McNeil v. United States, 508 U.S 106, 111-112, 113 S.Ct. 1980, 124, L.Ed.2d 21 (1993)). Some courts approach the “notice requirement leniently” (e.g., Santiago-Ramirez v. Sec’y of Dept. Of Defense, 984 F.2d 16, 19 (1st Cir. 1993)), interpreting section 2675(a) to say that the Form 95 is to be interpreted more literally than a complaint (Murrey v. United States, 73 F.3d 1448, 1451 (7th Cir. 1996). Other courts have found that the “notice-of-claim” standard for a Form 95 is more demanding than Rule 8(a) requires for a complaint because the former requires a detailed statement of fact, “a throwback, perhaps, to the era of ‘fact pleading’ that preceded the adoption of [the federal rules of civil procedure].” Murrey, 73 F.3d at 1452. Courts have refused, however, to interpret persons wishing to hold the federal sovereign liable in tort must satisfy the strictures of law, but also recognizing that Congress did not intend to shield the federal fisc behind an impenetrable thicket of lawyerly technicalities.” Dynamic Image Tech. Inc. v. United States, 221 F.3Dd 34, 40 (1st Cir. 2000). Two recent federal cases demonstrate how courts have attempted to strike that balance.

In Wojciechowicz v. United States, 474 F.Supp.2d 283 (D.Puerto Rico, Feb. 20), the executors of two estates filed suit against the FAA after a plane crash that claimed five lives in the vicinity of El Yunque, Puerto Rico. Both executors, individually and on behalf of their respective estates, filed Form 95s with the FAA. None of the actual heirs of either estate, however, filed a Form 95. After the FAA denied their claims, several of the heirs filed a lawsuit in the U.S. District Court in the District of Puerto Rico.       

The FAA moved to dismiss the adult’s plaintiffs who were not specifically identified in the administrative claims and had not filed independent claims. The district court noted that, unlike other jurisdictions, under Puerto Rican law, the estate is not a juridical person and as such does not have the legal capacity to prosecute a wrongful death claim and that other cases from that jurisdiction had found that the heirs’ failure to file individual administrative claims was fatal unless the government was otherwise on notice. Wojciechowicz, 474 F.Supp.2d at 290.

However, despite the failure of the heirs to file their own Form 95s, the FAA was on notice of their identities since the claims for the two estates were filed the same day through the same counsel, all bore the same last name, and the FAA denied all the claims in a single letter, in so finding, the court also chided the FAA for “play[ing] dumb,” something the court felt was “unbecoming for the sovereign.” Wojciechowicz, 474 F.Supp.2d at 291.

On the other hand, in Torjagbo v. U.S. , District Court for the middle District of Florida found that a pro se plaintiff had not met the notice-of-claim requirement. The plaintiff was injured during an emergency landing when the Cessna aircraft he was piloting lost engine power. Soon thereafter, the aircraft’s engine lost partial power, the plaintiff radioed the Air Traffic Control Tower at Patrick Air Force Base. The controller failed to provide the plaintiff with the radio frequency for the nearest approach control facility. The plaintiff was injured when the plane hit a rise in the terrain, lifted from the ground, and crashed nose-first into the pasture.

The plaintiff, then represented by an attorney, filed a Form 95 with the Claims Office at PAFB, alleging that his injuries were caused by engine failure resulting from the “negligent repair, maintenance, and inspection of the plane by Patrick air force maintenance personnel.” After that claim was denied, the plaintiff filed a complaint under the FTCA, which included a claim based upon the conduct of the air traffic controller. The government filed a motion to dismiss that claim for lack of subject matter jurisdiction.

Combing through the plaintiff’s Form 95, the district court noted that nowhere in that claim did the plaintiff reference the conduct of the air traffic controllers as being negligent or a contributory cause of his injuries. In fact, the plaintiff’s Form 95 was “devoid of any references to air traffic controller.” Torjagbo, 2007 WL 1970867. Because nothing in the plaintiff’s administrative claim could have suggested to the government that he also linked his injuries to the actions of the air traffic controllers, the district court had no jurisdiction to consider that claim. Torjagbo, 2007 WL 1970867.

Both Wojciechowicz and Jorjagbo demonstrated how courts have interpreted and applied the notice-of-claim requirement in section 2675(a). While this notice hurdle can be met with minimal information, a danger lurks for those who do not list all claimants and potential bases for recovery or who do not have a clear theory of liability against the government. For those who fail to do those things, the result could be dismissal of their complaint for lack of subject matter jurisdiction, which, of course, the government may raise at any time.