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quickly. On the other hand, if you get too specific about the allegations of neg- ligence, you may be limited to that position if you are forced to file suit. As part of the investigative process, the claims representative may want to inter- view your client. This is usually done at the client’s home and is not recorded or transcribed. Generally, if the investiga- tion progresses to an interview, it means that the agency is contemplating making an offer. Before you entertain allowing that interview, I recommend that you get a commitment from the claims represen- tative that they concede or are satisfied with the government’s liability. You should also set parameters on the topics to be covered at the interview and pre- pare your client just as if it were a deposition.

Settlement Offers or Denial of the Claim: What Next?

If the agency makes an offer, you nego- tiate just as if you were handling any other case, with a few exceptions. Each agency has limited settlement authority, after which they must go to the Department of Justice (DOJ) for approval to pay more than the agency authority. The most any agency has is $200,000, and agencies with $200,000 in authority include the vari- ous Armed Services and the Veterans Administration. Experienced claims of- ficers will tell you this up front and will have a good idea (but not a guarantee), that they can get approval before they make a conditional offer in excess of their agency’s authority. Because state law con- trols, any damage caps applicable in the jurisdiction where the tort took place will be in effect. If you settle the claim, attorney’s fees are limited to 20% if settle- ment occurs at the administrative claims level and 25% if settlement occurs after suit is filed. If the claims officer offers something less than their agency authority, you can usually tell when the claims representa- tive has offered their maximum dollar if they make a written final offer.

I urge

you to wait until you get to that point before you make a decision on whether or not to accept any offer. Once you get the written final offer, the statute gives you 6 months to either accept the offer or file suit in USDC. If you wait more than 6 months to accept the offer or file suit, then the claim will no longer be valid and you are entitled to nothing. If the claims officer denies your claim,

then you likewise have six months to file suit in USDC and, for purposes of the

Spring 2006

FTCA, a final written offer of settlement is treated the same as a final denial.24 There are provisions to request reconsid- eration and you can submit additional written support for your client’s claim during the reconsideration period. The request for reconsideration must be made within the six month period following a written final offer or denial and once you request reconsideration of the claim, the SOL once again is tolled.25

If your re-

quest for reconsideration is denied, then the six month period within which you must file suit starts to run as of the date of the denial of the request for reconsid- eration or six months from the filing of the request for reconsideration. The claim- ant has the option to choose which date to use.26


28 U.S.C. §2401(b); Jerves v. United States, 96 F.2d 517 (9th

25 26

of the final denial is required. 28 C.F.R. 14.9. 28 U.S.C. §2401(b). 28 U.S.C. §2675(a).

Filing Suit

After filing suit, the claims service loses jurisdiction over the claim, and they will issue a pro-forma denial even if they took no previous action on the case. You can file suit in the USDC where the tort oc- curred or where the claimant resides.Because the USDC has original exclusive jurisdiction, you do not file a certificate of merit or comply with other state filing requirements. When you file suit, the United States is the only named defendant and you serve the Attorney General and the U.S. Attorney for the jurisdiction where you file suit. The United States has sixty days to file an an- swer and, after that, your case will proceed just as any other case filed in USDC. One important difference, however, is that your client gets no jury – only a bench trial.

Cir. 1992). Written notice

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