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Sum Certain Requirements


If you fail to file for a sum cer- tain, the agency is supposed to put you on notice of the deficiency.15


A sum cer-


tain on the claim may be amended at any time prior to final agency action, but only if the initial claim was a valid claim (i.e., contained a sum certain).16


If you amend


the claim form to include a new cause of action (i.e., loss of consortium), the six month administrative review period starts


14


Ad damnum in suit may be raised to an amount higher than that claimed if you can show that there is newly discovered evidence that was not reasonably available prior to fil- ing the claim. See Spivey v. United States, 912 F.2d 80 (4th


Cir. 1990), disallowing an


upward amendment because the injury could have been discovered prior to filing the claim.


15


Molnar v. United States, 515 F.2d 246 (5th Cir. 1975).


1628 C.F.R. 14.2. 17 28 U.S.C. §2680(a) to §2680(j).


This simply means that you must ask for a specific dollar amount when you file your claim. Make sure the amount is high enough to recover all potential, future expenses because you may be limited to that amount as your cap if you have to file suit.14


over. Remember that this must be done before the limitations runs.


Torts Included in the FTCA Generally, torts involving negligence are


covered if committed by government employees acting within the scope of their employment. There is, however, a long list of torts for which the United States can- not be held accountable and this list includes intentional acts like assault, libel and slander, as well as a discretionary func- tion exception.17


Prior to taking any claim,


you should check this list to see if the claim you are considering is an exclud- able act. If you have a claim involving an intentional act, I recommend that you investigate the facts to see if there is an underlying act of negligence. For in- stance, if an off-duty service member shoots someone, you should investigate the matter to see if negligence was in- volved in allowing the service member to take the gun home. The FTCA gives jurisdiction for causes of action involving injury, monetary claims, death and property loss caused by the negligence or wrongful act or omis-


sion of any employee of the government.18 Once you establish this, check to see if the act is an excepted one as set forth above. The FTCA does not impose li- ability on the United States for negligent acts on the part of independent contrac- tors or on those who receive federal funds, but on whom the United States does not exercise day-to-day control.19


This is true


even if government property is used in the commission of the tort.20


Similarly, if a


government employee is injured on the job by another employee and they are covered by the Federal Employment Compensation Act (FECA), then FECA is their exclusive remedy.21


The FECA


exclusion, however, does not apply to property losses. Problems will sometime arise in medi- cal negligence cases involving a physician


18 19


28 U.S.C. §1346(h).


United States v. Orleans, 425 U.S. 807 (1976); Logue v. United States, 412 U.S. 521 (1973).


20


Borguez v. United States, 773 F.2d 1050 (9th Cir. 1985); Watson v. Marsh, 689 F.2d 604 (5th


Cir. 1982). 21


5 U.S.C. 8116(c). For more information on the operation of FECA, see 5 U.S.C. 8101-8150.


Spring 2006


Trial Reporter


39


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