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who is an independent contractor. It is often difficult to tell if an independent contractor is involved. In those instances, you should file your claim and if an inde- pendent contractor is involved, my experience is that the claims officer will immediately tell you. In those instances, you would then pursue that case just as you would any other non-FTCA case pursuant to the rules within that jurisdic- tion. Because most state limitations periods are longer than the limitation pe- riod under the FTCA, this is generally not a problem.

Agency Action After You File a Claim

You wait, and wait, and then you may wait some more. Under the law, the

United States must be given six (6) months to investigate the claim.22


fortunately, decisions are rarely made within that six month period so you should make sure to tell your clients that nothing is likely to happen within the first six to twelve months. Because the SOL is tolled as long as the claim is pending, you can continue to wait for an answer or, af- ter six months and a day passes, you may file suit in the appropriate United States District Court (USDC). The law allows you to file suit in the USDC where the tort occurred or where your client cur- rently resides. If your client is affiliated with the military, they will likely move

22 28 U.S.C. §2675(a).

every 2 to 3 years. Before you file suit, you should see if they will be changing jurisdictions as this may allow you file in a more favorable jurisdiction. If you file suit in a USDC other than where the tort took place, keep in mind that that court will apply the substantive law of the ju- risdiction where the tort occurred. If you have a choice, carefully consider the place where you will file suit, especially if the new jurisdiction has a cap on damages. If the tort occurred in a location that had no damage caps and the new jurisdiction has a damage cap, the judge in the new jurisdiction may feel constrained by the cap in their jurisdiction as they may never have awarded damages in excess of their cap. There are also circumstances where you must file suit within six months of certain agency action. Those situations are described below.

Interaction and Negotiating with the Agency

After you file a claim, you will receive an initial letter acknowledging receipt of the claim. I recommend that you file all of your claim forms using some method where you will have a written record of the delivery date. When you receive the acknowledgment letter, check the date the agency claims to have received it, and if their date is incorrect, send them a letter with a copy of your proof that the claim was filed earlier.

The initial letter will also contain a list of documents that the agency wants you to provide. It will cite the Code of Fed- eral Regulations (CFR) and indicate that your failure to provide this material may be grounds for dismissal of the claim. If you decide not to pay any attention to that part of the letter on the theory that Congress has set the jurisdictional require- ments for a proper claim, and then make sure you have adequately documented the claim with enough evidence and informa- tion so it can be investigated. Failure to document a claim may make it a nullity.23 As a practical matter, however, you have an important choice to make. The claims officer will likely be overwhelmed with the number of claims assigned to them, so if you provide the information they need and make it easy to evaluate your client’s claim, it will likely be evaluated more


28 C.F.R. 14.4. Keene Corp. v. United States, 700 F.2d 836 (2d Cir. 1983), cert. denied, 104 S.Ct. 195 (1983); GAF Corp. v. United States, 818 F.2d 901 (D.C. Cir. 1987); Cotto v. United States, 993 F.2d 274 (1st

40 Trial Reporter

Cir. 1993). Spring 2006

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