Federal Tort Claims Act (Litigator Series)

Department of Justice representation is generally not available in a federal criminal proceeding or investigation.

Federal Tort Claims Against Federal Judiciary Personnel

Nor is it available in a civil case if the employee is the subject of a federal criminal investigation concerning the act or acts for which he seeks representation. In such a civil case, however, private counsel may, if appropriate, be provided to the employee at federal expense, provided no decision has been made to seek an indictment or file an information against the employee. Criteria for Individual Capacity Representation. There is a two-part test.

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First, the employee's actions giving rise to the suit must reasonably appear to have been performed within the scope of federal employment. Second, it must be in the interest of the United States to provide the requested representation. Agencies and United States Attorneys cannot authorize representation. Because the executive is responsible for determining the interests of the United States in litigation, decisions of this nature are precluded from judicial review by the doctrine of separation of powers. Equal Employment Opportunity Commission , F. See also Turner v.

Schulz , F. Hudson , 71 F. But see Hall v. Department of Justice representation is neither automatic nor compulsory; federal employees are free to retain counsel of their choice at their own expense. Every individual defendant who desires Department of Justice representation must request it in writing.

The written request should be submitted to the individual's employing agency usually the Office of the General Counsel, Chief Counsel, or Solicitor along with a copy of the summons and complaint or other legal papers. The agency should then forward the request with all available factual information to the Department of Justice with a recommendation as to whether representation should be provided based upon the criteria of "scope" and "interest.

If a request for individual capacity representation must be considered promptly, it should be emailed to the address listed above and followed by a telephone call to the Director of the Constitutional Torts Staff to advise regarding the short suspense date. In some rare cases an oral request for "conditional" approval may be made, provided sufficient information is available to determine scope of employment and interest of the United States.

Such requests must be supplemented by a written representation request package as soon as possible.

Finally, as noted, above, United States Attorneys have automatic authority to seek extensions of time in which to respond to a complaint. Once individual capacity representation is approved, the litigating attorney should provide a Form to the client for signature and return.

The form sets forth the limitations of Department of Justice representation so that the client may be fully informed before he or she enters into the attorney-client relationship. See Department of Justice Order Whenever the Solicitor General declines to authorize an appeal on behalf of an employee or representation of the employee involves assertion of a position that conflicts with the interest of the United States, the Department may not continue to represent the employee if: However, in appropriate cases, private counsel may be provided at federal expense.

Payment of Adverse Judgments. Regardless of whether representation is provided by the Department of Justice, a federal employee remains personally responsible for the satisfaction of a judgment entered solely against the employee; there is no right to compel indemnification from the United States or an agency thereof in the event of an adverse judgment.

However, the Attorney General may authorize indemnification of Department of Justice employees for adverse judgments. Pre-judgment indemnification is disfavored by the Department and is not available except in rare and extraordinarily compelling circumstances. Other agencies have similar regulations regarding indemnification of their employees. Where conflicts in the factual or legal positions of a number of defendants make representation by a single attorney impossible, retention of private counsel at government expense may be authorized, if appropriate, and subject to the availability of funds.

Special written agreements between the Department of Justice and private counsel are required. District court orders denying immunity, absolute or qualified, are immediately appealable at both the motion to dismiss and summary-judgment stages of litigation so long as the ruling turns on a question of law. Fitzgerald , U. Beneficial Industrial Loan Corp. The timely filing of a notice of appeal is mandatory and jurisdictional.

Federal Rule of Appellate Procedure 4 governs the time for filing a notice of appeal in cases subject to 28 U. Rule 4 a 1 A generally requires that the notice be filed with the clerk of the district court within 30 days after entry of the order appealed from. If the United States, a federal agency, or an officer or employee of the United States is a party to the pending action, however, the period for filing a notice of appeal by any party is 60 days.

That includes cases in which federal officers or employees are sued in a personal capacity for their official acts. The rule implements the mandatory time restrictions on appeals in civil cases prescribed in 28 U. Those time restrictions are jurisdictional. Consultation is especially important because the plaintiff may move in the district court to certify the appeal as frivolous or move to dismiss in the court of appeals for want of jurisdiction under Johnson v. Claimants need not establish that the vaccine was defective, or that any degree of negligence was involved in its administration.

The only liability-related question is causation—did the vaccine cause the injury for which compensation is sought. The Act prohibits the filing of a civil action for damages against a manufacturer or vaccine administrator for a "vaccine-related injury or death" unless the individual has first pursued a claim under the Vaccine Act.

By offering an alternative to traditional tort actions against vaccine administrators and manufacturers for alleged serious adverse reactions, the Program recognizes and furthers the public interest in encouraging the availability and use of these vaccines. Currently, the vaccines covered under the Program are: The cases are filed in the United States Court of Federal Claims by individuals claiming to have suffered injuries as a result of the receipt of certain vaccines.

The cases routinely involve claims of catastrophic injuries or death. As a result, the cases present unique challenges and require diverse litigation skills of the Department of Justice trial attorneys who defend them. When a petition for vaccine compensation is filed, the chief special master assigns the case to a special master who makes an initial determination as to whether entitlement to an award should be granted.

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In many cases, a trial is necessary to decide the issue of entitlement under the Program. Although the court is located in Washington, D. A finding of vaccine-causation is made in one of two ways. The claimant may show vaccine-causation by proving a specified injury occurred within a specified time period following vaccination. This entitles the claimant to a presumption of vaccine-causation that can only be rebutted if we establish, by preponderant evidence, a cause for the alleged injury other than the vaccine. If the claimant cannot meet the requirements for a presumptively vaccine-related injury, the claimant must prove vaccine-causation under more traditional standards of proof used in tort litigation.

In either situation, these cases require the development of detailed factual evidence and medical evidence from experts in various medical specialties, such as neurology, pediatrics, immunology, rheumatology, epidemiology, infectious diseases, pathology and virology. Once a determination of vaccine-causation is made, the claimant is generally entitled to compensation for actual and future unreimbursable medical expenses related to the vaccine injury.

A life care planner is often retained to develop a life care plan to determine future medical and rehabilitative needs. Punitive damages are expressly prohibited. Cases that reach the compensation phase frequently are settled by the parties. Awards are paid from a trust fund, which is funded by an excise tax on vaccines. The damages analysis may include interpretation of statutory compensation provisions and legal precedent for certain elements of damages.

Federal Tort Claims Act Litigation

Consideration must also be given to other primary benefits to which the injured party is entitled such as private insurance, Medicare, and benefits under the Individuals With Disabilities Education Act IDEA. Under the statute, these benefits may be offset against the vaccine compensation award. Medicaid-based programs are secondary to a Program award.

Case law has determined that Social Security Disability Insurance benefits are not an offset against a vaccine compensation award, however. The Court of Federal Claims reviews the decision and enters judgment. Any vaccine injury compensation case received in the office of a United States Attorney should be forwarded immediately to the Vaccine Litigation Section of the Constitutional and Specialized Tort Branch for handling. If such a proceeding has been filed in the United States District Court or a state court for resolution, rather than the proper forum of the United States Court of Federal Claims, similar action should be taken to notify the Vaccine Litigation Section so appropriate steps may be taken in cooperation with the United States Attorney to either dismiss the case, or remove it to the Court of Federal Claims.

Part 79, establish procedures designed to utilize existing records so that claims can be resolved quickly in a reliable, objective, nonadversarial manner with little administrative cost to the United States or to the person filing the claim. The Radiation Program follows these procedures to develop the administrative record and issue a decision awarding or denying entitlement to compensation under the Act.

RECA sets forth five categories of claims: There are two major eligibility criteria for each category of claims: Causation is not an element in any claim under the Act. The miner must have been exposed to a certain threshold level of radiation measured by working level months of radiation "WLMs" during the course of his uranium mining activities. Alternatively, the miner must have been employed in a uranium mine for at least one year during the same time period. Finally, the miner must have subsequently developed primary cancer of the lung or one of the following nonmalignant respiratory diseases: The miller must have been employed in a uranium mill for at least one year during this time period.

Federal Tort Claims Against Federal Judiciary Personnel | United States Courts

Finally, the miller must have subsequently developed primary renal cancer, chronic renal disease, primary cancer of the lung, or one of the following nonmalignant respiratory diseases: The ore transporter must have transported uranium or vanadium-uranium ore from a mine or mill for at least one year during this time period. Finally, the ore transporter must have subsequently developed primary renal cancer, chronic renal disease, primary cancer of the lung, or one of the following nonmalignant respiratory diseases: The downwinder must establish physical presence in certain geographical areas in Utah, Nevada and Arizona for at least two years during the time period beginning on January 21, , and ending on October 31, , or for the entire period from June 30, , to July 31, In order to receive compensation under the "downwinder" provisions of the Act, it must also be demonstrated that, after the requisite length of exposure, one of the following specified compensable diseases was developed: The locations where covered atmospheric nuclear testing occurred are: The onsite participant also must have developed one of the 20 cancers identified under the downwinder provisions.

If a complaint seeking judicial review of this action in United States District Court is received by the office of a United States Attorney, please immediately notify the Assistant Director for the Radiation Program to coordinate an appropriate response. The Environmental Torts ET staff defends the United States in FTCA and other toxic-tort actions arising from contamination of the environment or exposure to chemicals or substances in the workplace and elsewhere.

Many of these cases arise out of activities of the military, but they stem from other agencies' activities, as well. The ET staff litigates in the district courts and the U. Court of Federal Claims. Inquiries regarding toxic tort and asbestos litigation may be made by contacting the Director of the Environmental Torts Section. Given long latency periods, the litigation often is not filed until decades after exposure.

The cases can require massive and prolonged discovery involving millions of documents and the analysis of convoluted and complex fact situations. For example, many of our cases, fact issues have spanned a period since prior to World War II. United States Attorneys confronted with environmental and related product liability tort claims against the United States shall contact ET as early as possible, preferably before suit. ET is prepared to assume primary responsibility for toxic tort litigation as described within JM It should be noted that tort suits alleging breaches of duty arising directly from regulatory activities of the government generally are within the purview of the Federal Tort Claims Act staff, and should be directed to that staff.

Matters involving clean-up activities of the Environmental Protection Agency, however, should immediately be brought to the attention of ET. Such cases should be handled jointly with the Environment and Natural Resources Division. Defense of vessel-caused pollution cases are handled by the Aviation and Admiralty staff.

Cases asserting implied warranties or indemnities arising out of contracts for government purchase of products made in conformity with government specifications where said products' alleged toxicity caused personal injuries should be referred to ET. United States , U. In addition, cases where government contractors seek to invoke indemnity provisions to be held harmless from environmental regulatory claims and tort claims should be referred to ET. If you have been injured, contact Susan E.

In order to have a valid tort claim against a federal employee, the victim must be able to show four elements by clear and convincing evidence. The elements include the following:. A claimant must file his or her claim for damages against a federal employee with the U. A sum certain is a fixed amount, which means that it is generally not subject to change. Essentially, a sum certain is an agreed upon amount. In the context of the FTCA, it is the amount in damages that the victim claims he or she is owed.

When filing a claim for damages against the federal government, the victim must fill out a sum certain portion. If an individual does not assert an amount of damages in the sum certain column, the claim will not be processed. It is important that you consult with an experienced personal injury attorney when determining a sum certain amount because according to 28 U. Thus, the amount on the claim form is the maximum amount that a claimant may receive in a tort lawsuit.

If you or someone you know has been injured by a federal employee, contact the experienced lawyers at Susan E.

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