Frequently asked questions about suing the VA for medical malpractice.
Can my ASO handle my claim for medical malpractice against the VA?
Should I file a claim for section 1151 benefits or should I file a Federal Tort Claim for malpractice?
How do I get my medical records from the VA?
Information on how to file a medical malpractice claim against the VA.
This is a general discussion on the topic of medical malpractice claims against the Department of Veterans Affairs and is not meant to provide specific legal guidance on your individual situation. Individual legal advice may only be obtained from an attorney licensed to practice law in your state or law
This is a work in progress, but to start with you do not sue the VA, or your doctor, if he or she is a federal employees acting within the scope of their employment, your options for medical malpractice claims are limited to a Federal Tort Claims Act Claim, or a §1151 claim.
I will start with the Federal Tort Claims Act Claim process. This process starts with filing an administrative claim for a sum certain with the agency responsible for the employees who caused the claim. This must be done with two years of the date that the injury occurred, or in cases of medical malpractice two years from the date that the malpractice occurred, or that you knew or should have known about the malpractice. In other words if your at the VA waiting to be picked up, and the VA driver runs over your foot with the VA’s truck on June 1, 2013, you knew that it happened on June 1, 2013, so you have two years from June 1, 2013 to file a claim. But if you were at the VA on June 1, 2013, for an operation and they left a sponge inside of you, but you were not told that the sponge was inside of you until June 1, 2016, you would have two years from June 1, 2016 to file you claim.
Generally the easiest way to file an administrative claim is to use a Standard Form 95 Claim for Wrongful Death or Injury. This one has the address for the VA already filled in for you. Remember if your spouse or dependents are making derivative claims for loss of consortium, survival benefits, or other derivative claim it is extremely important for them to be filed as separate administrative claims. I’ve seen many of these claims tossed out in court, because they were not filed properly administratively.
Most veterans are engaged in a never-ending war of attrition with the VA over their disability rating as a result of this, they have a strong connection with their veterans service officer “VSO”. VSOs are individuals who health veterans navigate the morass of bureaucracy and wage war against the VA’s phalanx of attorneys, in order to deal with their disability issues. All of the VSOs that I’ve ever met, whether they are full-time employees of a veteran’s service organization, or a State agency, or volunteers have been well-meaning individuals; however, her qualifications and resources available to represent the veterans have varied widely. Many veterans who believe that they have been the victim of medical malpractice at the VA will first turn to their VSO for advice about what to do. VSOs who are rarely lawyers operate in a world where there is only one option and that is to file a claim against the VA for a disability.
38 U.S.C. § 1151 allows the VA to increase the veterans disability rating, as a result of injuries that occur due to medical negligence while the veteran is receiving medical care at the VA. For example, and I am just guessing at these rating numbers, if a veteran was rated at 50% due to a service-connected hearing loss and while he was at the Philadelphia VA, to see his audiologist an orderly mistakenly misidentified him, and took him up to surgery, where through a series of errors, this misidentification was not detected and his perfectly healthy right leg was removed, he could apply for an increase in his disability rating, even though this injury clearly took place after he left active duty. The advantage to the veteran of going through the section 1151 route is that there will be no attorney’s fees. The disadvantage is that unless this is a slam dunk case, the veteran is obligated to prove that the VA’s medical treatment deviated from generally accepted medical standards. Many VSOs have told me that this can be extremely difficult. Rarely is the veteran or the VSO in a position to fund the cost of supplying expert testimony, so the VA wins, because the veteran did not prove malpractice.
One of the issues that veterans have to be aware of is that when they file a § 1151 claim is that they have clearly started the statute of limitations running for any federal tort claim act claim that they may have. It can take more than 2 years for a veteran to have his or her § 1151 claim adjudicated in some areas. I have often received phone calls from veterans court said that they did not know that they could file a federal tort claim, until after their § 1151 claim was denied. Usually they call several years after they have initially filed their § 1151 claim inevitably I tell them that I have no desire to get involved with taking their case. Generally, you have 2 years to present an administrative claim from either the date of malpractice, or the date that you knew or should have known of the malpractice. If you have gone to the trouble of filing a § 1151 claim is clearly knew of the malpractice so then the question becomes did you adequately investigate your legal options? Medical malpractice cases are complicated enough, most malpractice attorneys, myself included are not likely to accept a claim with a built in statute of limitations issue, that will take up a lot of time, and may result in a complete dismissal of the case.
Personally, I’ve never understood why the National Service organizations and those entities that sponsor training for the veterans service officers have not strongly encouraged veterans to file both types of claims. There is no prohibition against this. There is simply an offset which is dealt with in the statute.
Federal Tort Claims Act Seminar Materials
By W. Robb Graham, Esq.
(This is a draft of the seminar materials that I used for a seminar that I presented for the New Jersey Association of Trial Lawyers in 2006. It is not a comprehensive, but was designed to help New Jersey attorneys recognize some of the more common issues that they may encounter with the claim under the Federal Tort Claims Act, it is not specific to either medical malpractice or the VA, so treat it with ans abundance of caution.)
The government of the United States operates an incredibly complex variety of services and activities throughout the world. Claims involving the United States government, and its activities, are governed by an equally complex system of statutes, regulations, and procedures. This outline is intended to provide only a basic overview of parts, of one of these statutes, the Federal Tort Claims Act, and give some general guidance on the issues that are encountered when dealing with the government, so that you can be aware of these issues and recognize them for future research, as necessary. It is not intended to be a comprehensive treatise on the subject. Due to space limitations, I have been unable to deal with intentional torts, medical malpractice and the Public Health Facilities Federally Supported Health Centers Assistance Act of 1992, which makes the Federal Tort Claims Act the exclusive remedy for malpractice at certain federally, funded Public Health Facilities, the discretionary or governmental function exception to the FTCA, or the exceptions that apply to a claim based on an act or omission of a federal employee who exercises due care while in the performance of a duty or function required by statute or regulation.
The Federal Tort Claims Act (“FTCA.”) 28 USC§§ 2671-2680, was created after many years of congressional deliberations and considerations. Before 1946, if a person had been negligently injured by a federal employee, while he was acting within the scope of his federal employment, the doctrine of “sovereign immunity” barred that injured party from suing the government for compensation. This doctrine often denied fair compensation to persons with meritorious claims.
At that time, the only available form of redress was the “private bill” –a system whereby the injured party, could be compensated for his injury by a special act of Congress. This system was cumbersome. It resulted in thousands of private bills being introduced into Congress each year. Also, the system was unfair to those who lacked sufficient influence to have a representative introduce a private bill on their behalf.
Federal “Employee” Issues in New Jersey
The FTCA applies to all federal employees, acting within the scope of their employment. Individuals who have never worked for the federal government, or served in the military, are frequently amazed by the tremendous number of activities, and entities, that the federal government operates and therefore qualify for FTCA coverage. While most of us have no difficulty identifying the USPS, FAA, FBI, and the DEA, New Jersey is home to several military facilities, which you should be also be aware of. Each of these facilities operates everything that the government feels that its service members are likely to need. Military bases frequently contain a large number of retail operations, recreational facilities, clubs, and organizations that may be covered by the FTCA, or depending upon the entity’s structure, they may not be entitled to FTCA coverage. Even more bewildering, is the variety of federal agencies and corporations, which may have employees passing through the state, in either their personal automobiles, or a rented, car who are acting in the scope of their employment at the time they crash into your client.
To complicate matters further, for the last 10 or 15 years, the federal government has been engaged in an effort to make it appear that the size of the government has been reduced. This has been done by reducing the number of “federal employees” that are on the government’s payroll, so that our leaders can campaign on a platform that they have “trimmed the fat.” In reality, this is fuzzy math at its finest. Often the same people who were maintaining, and performing basic administrative tasks, for the government for decades and who “lost” their jobs when, the fat was “trimmed,” are still there, where they’ve always been, doing the exactly the same job, only now they are employed by “ABC Corp.” The same people who maintain Fort Monmouth now, have been doing the same thing, there since the 1960s. However, through the miracle of outsourcing, they have become employed by some corporation, that does not provide the same level of benefits to the employee, that the federal government did. The federal government still gets the same individuals to do the same job, only now the government can say that it is leaner and meaner. In reality, all that has happened is a new level of federal employees have been created to monitor the performance of the “contractor” and the “contractor’s staff,” so there are really more individuals being paid to work for the government, there are just fewer on the payroll, and ABC Corp gets to bill the government for the former employees monthly, on a cost plus basis, so this cannot be costing the taxpayers less money.
As a result of this, it is extremely important to carefully investigate any case that may involve a federal employee, or a federal installation, so that you can correctly determine the status all of the potential defendants and coordinate the procedural requirements of the FTCA, as well as the procedural requirements of any possible state action in the event that the defendant turns out not to be a federal employee.
Scope of “Employment” and Employee Issues
28 § 2679. Exclusiveness of remedy
(b) (1) The remedy against the United States provided by sections 1346(b) and 2672 of this title [28 USCS §§ 1346(b) and 2672] for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred with
The United States is not an insurance carrier. It is only responsible for the acts of its employees “while acting within the scope of his office or employment.” This is an important principle to remember, particularly when considering accepting a case, with egregious facts. Egregious facts tend to occur only when the employee is not acting within the scope of their employment or office. The most frequent occurrence of this issue is “drunk driving.”
Military recruiters frequently are provided with automobiles that they are allowed to take home with them. This is referred to as “domicile to duty” use. The problem becomes when the recruiter takes the vehicle out, after his return to his domicile, for a night on the town. The recruiter who becomes intoxicated, and then runs over your client, will likely be determined to be not in the scope of his employment. This will leave you with having to chase down the recruiter, and hoping that he may have some personal insurance, that will provide coverage to your client. It is extremely critical to assess the facts early in these types of matters, because there have been situations where the “intoxicated” driver has been found in the scope of his employment. This dilemma can be particularly problematic, if you wait too long to present an administrative claim. It is entirely possible that the United States will not deny the claim, until after the statute of limitations for a state action against the recruiter as an individual has expired.
The dilemma caused by egregious conduct, is unfortunately not limited to just “drunk driving” cases, but applies to a wide variety of other potential claims against the United States as well. In Pottle v. United States, 918 F. Supp. 843, 845 (D.N.J. 1996) the plaintiff was a military recruiter who abused his position as a Navy recruiter, to sexually harass the plaintiff, who was a young female, that he attempting to recruit into the service:
…In November of 1992, Petty Officer Kevin Lupo recruited the plaintiff, Joyce Pottle, to join the United States Navy. As part of the recruitment process, Lupo drove plaintiff to the Naval recruiting center in Berlin, New Jersey. Lupo and Pottle were the only ones present at the center. There he conducted an interview and told plaintiff that he would have to carry out a body fat test on her to determine if she was eligible to join the Navy. Lupo instructed Pottle to enter an adjacent room and undress so he could perform the body fat examination. Pottle undressed down to her underwear and Lupo began the exam. During the course of the examination, which lasted more than 10 minutes, Lupo continued to tug at Pottle’s underwear and complained that their presence was making the measurements difficult. Lupo told Pottle that he was becoming sexually aroused. Plaintiff terminated the interview. In subsequent weeks, Lupo called Pottle and told her not to tell anyone about the body fat examination because it was confidential. Plaintiff states that because of the actions of Petty Officer Lupo, she declined to be inducted into the Navy
Plaintiff argued that:
(1) the assailant was acting within the scope of his employment, (2) the assault occurred at the location where Officer Lupo performed his employment duties, however improperly, and (3) the plaintiff was at that premises in furtherance of the purpose for which the government maintained the facility. Any danger at the premises was caused by Lupo’s behavior and therefore, any allegation of premises liability is actually a claim that the government failed to properly hire, train, or supervise him. While the Court recognizes that premises liability may, under certain circumstances, be the basis of a negligence claim against the United States, a theory of premises liability cannot be used as a subterfuge to mask a simple assault and battery claim based on inadequate hiring, training, or supervision of the offending employee. Every day, across the country, thousands of federal employees interact with millions of citizens on government premises at post offices, administrative offices, courthouses, and other facilities. Tensions may rise during the course of these interactions, or government employees may fail to follow directives issued by their supervisors. Section 2680(h) was intended to bar claims arising from assaults by government employees. If the Court held that the government was subject to suit in such cases, it would overstep the bounds of the sovereign immunity waiver expressed by the government. Summary judgment will be granted to the defendant on this claim as well.
The message here is that unusual cases deserve careful consideration and research, before you commit to represent the claimant. The facts of Nationwide Mutual. Ins. Co. v. Liberatore, 2004 U.S. Dist. LEXIS 27949 (D. Cal. 2004) show how federal employees can and do manage to get themselves into trouble and demonstrates that what might seem like a substantial case when the client retains you, can turn you’re your worst nightmare. Libertore was a sent by the Navy to inspect various west coast duty stations:
…After arriving at Los Angeles International Airport and as authorized and arranged by the U.S. Navy, Mr. Liberatore rented a car from defendant Dollar Rent-A-Car Systems, Inc. (“Dollar”). Nationwide notes Mr. Liberatore paid Dollar with his U.S. Navy credit card which he used for U.S. Navy travel and work-related expenses. Mr. Liberatore drove to Bakersfield with the intention to meet defendant Sherry Ivey (“Ms. Ivey”) at her home there. Mr. Liberatore arrived in Bakersfield between 2-2:30 p.m. on July 18, 2001 and went to a Veterans of Foreign Wars (“VFW”) post as Ms. Ivey was not at her nearby home. Mr. Liberatore drank three 12-ounce cans of beer at the VFW post and met Ms. Ivey at her home between 4-4:30 p.m. Mr. Liberatore and Ms. Ivey decided to drive to State Line, Nevada to gamble and spend the night. Mr. Liberatore planned to visit China Lake the next day, expected Ms. Ivey to remain with him or do something on her own during his visit, and then return Ms. Ivey to her Bakersfield home. … …Shortly after leaving Ms. Ivey’s home in Mr. Liberatore’s rental car, Mr. Liberatore bought a 12-pack of beer at a convenience store. Mr. Liberatore and Ms. Ivey continued their trip and drank beer in the car as Mr. Liberatore drove. An hour after purchasing the beer and after having consumed one beer in the car, Mr. Liberatore did not see a semi-truck which was stopped in his path as a result of a preceding collision just outside Boron, California on State Route 58. After Mr. Liberatore attempted to brake, his car rear-ended the semi-truck. Ms. Ivey suffered serious injuries, and Mr. Liberatore suffered minor injuries. Mr. Liberatore was arrested for driving under the influence and was later convicted of the offense. After visiting Ms. Ivey in the hospital, Mr. Liberatore returned to Los Angeles for a flight to a prearranged U.S. Navy conference in Memphis. Mr. Liberatore visited neither China Lake nor other U.S. Navy installations during his California stay. Nationwide Mut. Ins. Co. v. Liberatore, 2004 U.S. Dist. LEXIS 27949 (D. Cal. 2004), aff’d 408 F.3d 1158 (2005)
In this case the federal employee left the area, went back to his command and did not report that he had been involved in an accident, to the Navy. He had apparently hoped that the rental car’s coverage would take care of this, without the need for him to report it to the Navy. The plaintiff filed suit. The rental car company tried to get the government to pay for this claim; however, the court found that Liberatore, was not in the scope of his employment when he decided to get drunk and go to Nevada to gamble. In this case Liberator had been sued individually, so the plaintiff was left with a remedy; however, if the defendant had not been sued or if there was no insurance on the car, things would have been different. The odds are that whatever coverage was available was less than would have been available from the United States. The point of this example is to show that the car rental companies are reasonably savvy about the FTCA and they will raise it as a defense.
The FTCA does not apply outside of the United States and its possessions. A good rule of thumb is there is no local US District Court, chances are good that the FTCA will not apply. There are a variety of other claims statutes that may apply, so if you are confronted with a client who was injured at overseas military base, or in some other far away place, by a federal employee, there is a chance that some other statute may provide an opportunity for redress.
Claims Timing Issues
When dealing with the FTCA, one must understand that there are essentially two statutes of limitation dates that must be complied with. The first statute which needs to be tracked is the time for presenting a proper administrative claim to the administrative agency that employed the negligent federal employee. After this has been done, the claimant cannot file suit for a period of six months. After six months has expired, the claimant is permitted to consider his claim administratively denied, and file suit in a United States District Court. If the agency has not denied the claim, the claimant does not have to file suit. Sometimes this result in standoffs of sloth on the part of the agency, and indifference on the part of the clamant, while the agency ignores the claim, and the claimant does not bother to file suit, allowing the claim to fester for years. On the other hand, once the agency denies the claim, a lawsuit, or a request for administrative reconsideration, must be instituted within six months of the date of denial. The date of denial of the administrative claim controls when the law suit must be filed. The date of incident simply does not matter. It is entirely possible to file a law suit within two years of the date of the accident, and have it dismissed, as being time barred.
An administrative claim must be presented within two years of the date of the accident. For medical malpractice cases, the claim must be presented within two years of the date of the occurrence of the medical malpractice, or when the plaintiff knew, or should have known that malpractice occurred. The seminal case, interpreting the discovery rule in FTCA matters arose out of medical care that a veteran received at the Wiles Barre VA Medical Center, in Wilkes Barre PA, a VA medical center that has a long tradition of providing substandard medical care to veterans, so it should surprise no one that the case that reached United States Supreme Court started there. In US v. Kubrick, 444 U.S. 111 (1979):
A provision of the Federal Tort Claims Act (FTCA), 28 U. S. C. § 2401 (b), bars any tort claim against the United States unless it is presented in writing to the appropriate federal agency “within two years after such claim accrues.” In 1968, several weeks after having an infected leg treated with neomycin (an antibiotic) at a Veterans’ Administration (VA) hospital, respondent suffered a hearing loss, and in January 1969 was informed by a private physician that it was highly possible that the hearing loss was the result of the neomycin treatment. Subsequently, in the course of respondent’s unsuccessful administrative appeal from the VA’s denial of his claim for certain veterans’ benefits based on the allegation that the neomycin treatment had caused his deafness, another private physician in June 1971 told respondent that the neomycin had caused his injury and should not have been administered. In 1972, respondent filed suit under the FTCA, alleging that he had been injured by negligent treatment at the VA hospital. The District Court rendered judgment for respondent, rejecting the Government’s defense that respondent’s claim was barred by the 2-year statute of limitations because it had accrued in January 1969, when respondent first learned that his hearing loss had probably resulted from the neomycin, and holding that respondent had no reason to suspect negligence until his conversation with the second physician in June 1971, less than two years before the action was commenced. The Court of Appeals affirmed, holding that if a medical malpractice claim does not accrue until a plaintiff is aware of his injury and its cause, neither should it accrue until he knows or should suspect that the doctor who caused the injury was legally blameworthy, and that here the limitations period was not triggered until the second physician indicated in June 1971 that the neomycin treatment had been improper.
Held: A claim accrues within the meaning of § 2401 (b) when the plaintiff knows both the existence and the cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice. Hence, respondent’s claim accrued in January 1969 when he was aware of his injury and its:
(a) Section 2401 (b) is the balance struck by Congress in the context of tort claims against the Government, and should not be construed so as to defeat its purpose of encouraging the prompt presentation of claims. Moreover, § 2401 (b), being a condition of the FTCA’s waiver of the United States’ immunity from suit, should not be construed to extend such waiver beyond that which Congress intended.
(b) There is nothing in the FTCA’s language or legislative history that provides a substantial basis for the Court of Appeals’ construction of § 2401 (b). Nor did the prevailing case law at the time the FTCA was passed lend support to the notion that tort claims in general or malpractice claims in particular do not accrue until a plaintiff learns that his injury was negligently inflicted.
(c) For statute of limitations purposes, a plaintiff’s ignorance of his legal rights and his ignorance of the fact of his injury or its cause should not receive equal treatment.
(d) A plaintiff such as respondent, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community, and to excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute. Whether or not he is competently advised, or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort plaintiffs must make.
A minor’s claim must be presented within the same time frame. There is no provision for extending the time for filing, until the minor reaches the age of majority.
As a practical matter, the greatest problems occur when the claimant files a claim with the agency, shortly before the two year statute expires. In jurisdictions, such as New Jersey, where there is a two year statute for personal injury claims, one can end up having the government deny the claim two and a half years after the incident, based on the fact that the employee was not in the scope of their employment, or that the “federal worker” was not really an employee, but was an independent contractor. In either of these situations, the claimant is left with whatever remedies would be provided by state law. Therefore, it is extremely important to try to resolve these issues, early on in the case, so that the appropriate suit may be instituted.
As indicated earlier the fact that the date of denial, not the date of accident, controls when suit must be instituted. This can result in having to file a lawsuit, much sooner than two years after the date of accident. For example, if Mr. Smith fell at a post office on June 1, 2006 and completed a standard form 95 and turned it into the post office while he was waiting for the ambulance to arrive, the claim was presented on June 1, 2006. The post office, being the most aggressive of all the federal agencies, when it comes to claims handling, could deny that claim on June 1, 2006, while Mr. Smith was still hospitalized. Mr. Smith would have to file his lawsuit within six months of June 1, 2006. While this is an extreme example, it shows the importance of tracking the date of denial, and not just the date of accident. The post office is particularly aggressive when it comes to denying claims quickly, because they have learned that a significant number of claimants simply will not file based on the denial date. When dealing with the post office, pay particular attention to conditional denials. The post office will sometimes send a very low offer, accompanied by a letter indicating that if the offer is not accepted, then the claim should be considered to be denied as of a certain date.
As a result of the fact that denial of the claim by the agency, controls both when you may, and when you must, file the client’s claim in court, one must give careful consideration as to when to file the claim when the agency. Generally, I advocate filing the claim as soon as possible. This will usually help flesh out any employees/independent contractor/scope of employment issues, while they can still be dealt with in state court. However, filing a claim too early, can result in being forced into court sooner than may be desirable, if the client is likely to have a long complex course of medical care. Once after you’re in federal court, you will be subject to a fairly rigorous discovery schedule, with deadlines for the production of your expert reports. In some serious cases, it may be necessary to wait to file the administrative claim, so that you are not forced to litigate the case while the client’s medical future is uncertain. It can be extremely difficult meet these deadlines, if the client is still under active medical care.
28 § 2674. Liability of United States
..The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages…
An “individual” means an “individual” and not “a public entity.” In an unpublished opinion the Third Circuit has confirmed that the United States is not entitled to Title 59 defenses, Hoefler v. United States, 121 Fed. Appx. 464 (3d Cir. 2005) Mrs. Hoefler fell on the landing at the top of the stairs leading to the entrance of the United States Post Office located in Palmer Square, Princeton, New Jersey. She claimed a dangerous condition caused her to fall. One of the slabs used to create the flat surface, of the landing protruded and created a dangerous condition causing her to fall. The USPS asserted that it was entitled to the benefits of Title 59. Somehow, the United States sold this concept to the District Court, which dismissed plaintiff’s claim, because she could not meet the “palpably unreasonable” standard contained in Title 59. The Third Circuit reversed the District Court, finding that the USPS is not entitled to claim this standard and that the USPS liability, for operating a facility which the public is invited to, is the same as a private person operating a commercial enterprise that the public is invited to:
….The District Court stated traditional negligence principles under New Jersey law applied to Mrs. Hoefler’s slip and-fall action, it concluded that there could be no liability as a matter of law based on the heightened standard of negligence under the New Jersey Tort Claims Act (“NJTCA”), N.J. Stat. Ann. § 59:4-1 et seq. The NJTCA imposes no liability on a public entity for failure to take protective action against a dangerous condition so long as such inaction was not “palpably unreasonable.” Pico v. New Jersey, 116 N.J. 55, 560 A.2d 1193, 1197 (N.J. 1989). … although the District Court stated that traditional negligence principles under New Jersey law applied to Mrs. Hoefler’s slip and-fall action, it concluded that there could be no liability as a matter of law based on the heightened standard of negligence under the New Jersey Tort Claims Act (“NJTCA”), N.J. Stat. Ann. § 59:4-1 et seq. The NJTCA imposes no liability on a public entity for failure to take protective action against a dangerous condition so long as such inaction was not “palpably unreasonable.” Pico v. New Jersey, 116 N.J. 55, 560 A.2d 1193, 1197
(N.J. 1989). …
…Only where there exists no common law private analog for a claim alleged under the FTCA should a district court look to the standards of care applicable to government employers under state law. See Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995) (“Under the FTCA, the United States may be liable for the performance of some activities that private persons do not perform. [Under such circumstances,] the proper examination is whether state or municipal entities would be subject to liability.”). The government conduct at issue here is maintenance of the post office steps; certainly,private persons run commercial enterprises that endure pedestrian traffic on a daily basis, and so there exists a private analog, and there is no need to resort to the imposition of the standards adopted by state and municipal entities under the NJTCA. Ordinary negligence applies. (Emphasis supplied)
Although, I promised that I would try to stay away from the discretionary exception to the FTCA, I feel compelled to point out how this issue can rear its ugly head, in even routine cases, such as premises liability matters. InNaidu v. United States, 93 F. Supp. 2d 577 (D.N.J. 2000) the plaintiff slipped and fell descending a flight of stairs, while visiting a national historic landmark. The court dismissed the complaint and held that defendant’s agency’s action regarding the condition of the staircase was susceptible to policy analysis; and therefore the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C.S. §§ 2671-2680, applied, and defendant was immune from liability. Defendant’s agency’s decision not to alter the historic staircase, implicated the statutory mission and mandate to preserve historic objects; and therefore the exception applied.
Although the United States is not entitled to Title 59, it will get the benefit of any specific statute that is designed to immunize, or limit the liability of an individual, in the state of New Jersey. Essentially, all of those special interest statutes, where some group convinced the New Jersey legislature, that they needed relief from liability, will be applied to the United States For example, the open land statute, has been held applicable, to the United States in, Weber v. United States, 991 F. Supp. 694 (D.N.J. 1998), the United States attempted to take advantage of New Jersey’s theNew Jersey Playground Act N.J.S.A. § 5:3-30 and New Jersey’s Landowner’s Liability Act. N.J.S.A. § 2A:42A-2. The court granted the defendant summary judgment:
….On June 4, 1994, plaintiff Karen Weber (“Plaintiff”) was using a swing set in Willow Pond Park. While she was on the swing set, a metal yoke that was holding the swing chain fractured and released the swing chain, causing her to fall to the ground. The fall caused her bodily injury. In addition, the metal yoke fell and hit Plaintiff on her head causing a puncture wound.
…Willow Pond Park is located on the premises of the Fort Dix Military Reservation. The Park is owned by the United States of America. ..The area of the Fort Dix Military Reservation where the Park is located is an “open” military base, i.e., there is unrestricted access to that portion of Fort Dix. The Park itself is open for use by the general public.
…Willow Pond Park comprises approximately thirty-five (35) acres. There is various recreational equipment and facilities located on the Park’s premises, including: swing sets, picnic tables, barbeques, park benches, basketball courts, a large pond, and a pavilion. A nominal fee is charged for use of the pavilion on those occasions when it is reserved in advance for use by a particular group. No fee of any kind is charged for access to or use of any other portion of the Park.
…The Government seeks dismissal of Plaintiffs’ Complaint for lack of subject matter jurisdiction. Specifically, it contends that this Court lacks subject matter jurisdiction because Plaintiffs have no cause of action under the substantive law of New Jersey.
In light of these recent amendments to the LLA, it is clear that the Act provides the Government with immunity against tort liability in this case. First, Willow Pond Park is a “premises” under the LLA since “premises” now includes land “whether or not improved or maintained in a natural condition.” Second, Plaintiff had entered and was using the Park for recreational activity. Finally, Plaintiff has presented no evidence that the Government received consideration for her recreational use of its facilities. Plaintiff argues that the Government should not be able to assert immunity under the LLA since her injuries resulted from an “artificial condition.” She contends that an exception to this immunity still exists where an “artificial condition” causes plaintiff’s injuries. This argument is without merit, however, since the artificial injury-producing condition exception to immunity under the LLA was explicitly rejected in Labree v. Millville Mfg., Inc., 195 N.J. Super. 575, 481 A.2d 286, 290 (N.J. Super. Ct. App. Div. 1984). …
Cases with GSA vehicles should be examined closely. The claimant is required to present the administrative claim to the agency that employed the federal employee. The GSA actually acts as the government’s car leasing agency. Rarely are GSA vehicles actually operated by GSA employees. This is particularly problematic, because the information that is obtained on most police reports simply indicates who owns the car. The car could be operated by someone from the Army, Navy or any other federal agency. Presenting a claim to the GSA, would not be a proper claim against those other agencies. When confronted with a police report that indicates that the vehicle is owned by the GSA, one should question the client closely to determine any information that the client may have about the status of the actual driver. Remember, that to most civilians, all uniforms look the same. Just because the client thinks that defendant was in an Army uniform doesn’t mean that it was not a Marine in a Marine Corps uniform.
The GSA can be contacted at:
GSA-Fleet Accident Management Center, PO Box 907 Forrest Park, GA 30297-0907 gsa.foia.@gsa.gov
Rental Cars and Personally Owned Vehicles
Both of these can cause real trouble. We live in a state that has quite a few federal employees passing through it, on a daily basis. Often federal workers are authorized to use their personally owned vehicle, to travel on behalf of the government, or are authorized to use a rental car. The fact that the federal employee is not in a government owned vehicle does mean that the FTCA will not apply.
In Knight v. United States, 50 F. Supp. 2d 1204, 1205-1208 (D. Ala. 1999), the court dealt with the situation where a claimant files suit in state court against a federal driver:
On August 7, 1998, Plaintiff filed a two-count Complaint in the Circuit Court of Montgomery County, Alabama against Michael Patrick Tierney (“Tierney”), alleging that on or about August 9, 1996, on a public highway, n1 Tierney negligently and wantonly “caused or allowed a motor vehicle to collide with a motor vehicle occupied by the Plaintiff.” (Compl. at 1-2.) Plaintiff further claims that he suffered injuries and damages as a proximate consequence of Tierney’s negligence and wantonness. (Id.) Plaintiff demands judgment against Tierney for $ 75,000 plus costs on each of the two counts. (Id.)
On September 15, 1998, the United States filed a Certification of Scope of Employment, wherein it certified that Tierney is an employee of the United States and was acting within the scope of his employment when the automobile accident occurred. (Substitution Not. Ex. A.) Accordingly, also on September 15, 1998, the United States both substituted itself as Defendant to this action and removed the case to this court, pursuant to, inter alia, 28 U.S.C. § 2679(d)(2) of the Federal Tort Claims Act (“FTCA”), …
Defendant United States moves to dismiss Plaintiff’s Complaint for failure to state a claim upon which relief may be granted… In support of its Motion, the United States claims that, “pursuant to the provisions of 28 U.S.C. § 2679(a), plaintiff’s exclusive remedy for a tort is to sue the United States in compliance with the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2672-80.” (Mot. P 4.) The United States argues that “plaintiff’s failure to file an administrative claim under the FTCA [prior to the institution of this action] deprives this Court of subject matter jurisdiction.” (Id. P 8.)
The FTCA requires that “[a] plaintiff who sues under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., must first present his or her claim to the appropriate federal [**6] agency.” Burchfield v. United States, 168 F.3d 1252, 1999 WL 104438, at *1 (11th Cir. 1999). Specifically, HN2 28 U.S.C. § 2675(a) requires the exhaustion of administrative remedies by a federal agency prior to the filing of a lawsuit against the United States, stating in relevant part:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.
…A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
…In his Response, Plaintiff sets forth several arguments in opposition to the United States’ Motion To Dismiss, yet fails to cite a single case in support of his arguments. First, Plaintiff argues that “the accident did not happen on a federal military base” and that “Tierney was driving a rented vehicle, not owned by the United States, which was covered by private liability insurance.” (Resp. PP 1-2.) The court finds Plaintiff’s arguments unpersuasive. Nothing in the FTCA requires that the accident giving rise to a claim against the United States must occur on federal property or that the automobile involved in the accident must be owned by the United States. See, e.g., Whitley v. United States, 170 F.3d 1061, 1999 WL 166593, at * 1 (11th Cir. 1999) (example of FTCA case in which accident giving rise to claim against United States did not occur on federal property and in which automobile involved in accident was a rented van, not a Government vehicle).
Second, Plaintiff argues that “the United States arbitrarily chose to certify that Michael Patrick Tierney was acting in the line and scope of his employment to create a technical defense [i.e. failure to first file written claim with appropriate federal agency] for Michael Patrick Tierney and for the United States” and that his “claim ought not be defeated by Government trickery.” (Resp. PP 4 and 6.) Plaintiff, however, offers no facts to support his allegations that the United States arbitrarily removed this case or engaged in trickery. The court notes that § 2679(d)(2) of the FTCA states that the “certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.” 28 U.S.C. § 2679(d)(2). Therefore, the court finds that the United States properly certified that Tierney was acting within the scope of his employment at the time of the accident.
Third, Plaintiff argues that his “damages are primarily property damages and determination of the matter should have been left with the state court.” The court finds that the nature of Plaintiff’s damages in this case is not determinative of the court’s subject matter jurisdiction. Rather, as previously stated by the court, the court’s original subject matter jurisdiction is provided by the FTCA and attaches irrespective of the nature of Plaintiff’s claims. See 28 U.S.C. § 2679(d)(2).
Finally, Plaintiff argues that “the case should not be dismissed, but assigned to inactive status until Plaintiff can comply with administrative procedures under the Tort Claims Act, if necessary. The court, however, is unable to comply with Plaintiff’s request because “the requirement of filing an administrative claim is a jurisdictional prerequisite to suit and cannot be waived.” Mays v. United States Postal Serv., 928 F. Supp. 1552, 1562 (M.D. Ala. 1996) (DeMent, J.); see also Lykins v. Pointer, Inc., 725 F.2d 645, 646 (11th Cir. 1984). The Supreme Court has held that the FTCA prerequisite of first filing a claim with the appropriate federal agency is clear and must be strictly adhered to, stating:
The command that an ‘action shall not be instituted… unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail’ is unambiguous. We are not free to rewrite the statutory text.
Therefore, the court finds that, because of the proper substitution of the United States as Defendant in this action, Plaintiff must comply with the provisions of the FTCA in his suit against the United States. Accordingly, because Plaintiff failed to file written notice of his claim with the appropriate federal agency prior to the filing of his Complaint, Defendant’s Motion To Dismiss is due to be granted and Plaintiff’s Complaint is due to be dismissed without prejudice.
Knight v. United States, 50 F. Supp. 2d 1204, 1205-1208 (D. Ala. 1999)
There is some relief for claimants who file suits against federal employees individually, not knowing that they are federal employees, the Westfall Act, was an amendment to the FTCA and allows the claimant to file a “timely” administrative claim 60 days after the case has been removed to, and dismissed, by a United States District Court. In this situation the date of filing the state action will be considered the date of filing of the administrative claim. However, this can be a real problem when the state action is filed more two years after the date of incident. While this maybe permissible for certain state actions, those involving a three year statute of limitations and minor’s claims, it will not provide relief under the FTCA. In Brasky v. Jermain, 917 F. Supp. 175, 176-178 (W.D.N.Y. 1995), the court dealt with this issue.
This is an action for money damages for personal injuries sustained by plaintiff, James P. Brasky, as a result of an automobile accident that took place on May 31, 1990, in the town of Freedom, New York. Plaintiff initially filed this law suit against Deborah S. Jermain in New York State Supreme Court, Erie County, in February of 1993 — two years and nine months after the incident …
On July 27, 1994, … the United States Attorney for the Western District of New York, certified that Jermain was acting within the scope of her employment as a census taker for the United States Department of Commerce at the time of the accident. On July 29, 1994, the government filed a petition for removal to the United States District Court for the Western District of New York under the Federal Tort Claims Act (“F.T.C.A.” or “the Act”), 28 U.S.C. § 2679(d)(2). The defendant now moves for substitution of the United States as the party defendant under 28 U.S.C. § 2679(d)(2) and, to dismiss the case against the United States for lack of subject matter jurisdiction…
For the following reasons, it is ordered that the United States be substituted as party defendant in this action. It is further ordered that the government’s motion to dismiss be granted.
…The F.T.C.A. accords absolute immunity to federal employees from common law tort claims when the alleged actions forming the basis of the complaint were committed within the scope of their employment. In such cases, the United States waives its sovereign immunity and the plaintiff is allowed to pursue a claim directly against the government, pursuant to the guidelines of the F.T.C.A. This is a plaintiff’s exclusive remedy. The Act provides as follows:
The remedy against the United States . . . for injury or loss of personal property, or personal injury or death arising or resulting from the negligent . . . act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim . . . . Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee . . . is precluded without regard to when the act or omission occurred.
28 U.S.C. § 2679(b)(1). The statute further directs that: Upon certification of the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such a claim in a state court shall be removed . . . and the United States shall be substituted as party defendant.
28 U.S.C. § 2679(d)(2). The Attorney General has delegated her authority to certify that a federal employee was acting within the scope of his office or employment to the various United States Attorneys. See 28 C.F.R. § 15.2.
The first issue that must be addressed is whether the language of § 2679(d)(2) mandates that the United States be substituted as defendant after certification, or whether the district court may review, de novo, the United States Attorney’s determination that the defendant was acting within the scope of his or her employment…
Accordingly, it is ordered that the United States be substituted as the party defendant to this action…
…The issue now becomes whether plaintiff’s action can be maintained against the United States. The government argues that it cannot be maintained because the court lacks subject matter jurisdiction.
28 U.S.C. § 2675(a). Failure to file an administrative claim is a jurisdictional defect that cannot be waived. Adams by Adams v. U.S. Dept. of Housing and Urban Development, 807 F.2d 318, 321 (2d Cir 1986); Filaski v. United States of America, 776 F. Supp. 115, 117 (E.D.N.Y. 1991).
The government contends that plaintiff has not filed an administrative claim with the Department of Commerce … As plaintiff has not responded, it must again be assumed that this fact is not in dispute. Thus, the court lacks subject matter jurisdiction over this case unless and/or until plaintiff exhausts his administrative remedies.
Under the F.T.C.A., the administrative claim must be filed within two years of the incident or it will be barred by the applicable federal statute of limitations. 28 U.S.C. § 2401(b). Here, more than two years have passed since the incident, as the car accident took place on May 31, 1990.
However, where a plaintiff files his or her claim in state court only later to have it removed to federal court and the United States substituted as party defendant, the Act will allow the plaintiff, in certain instances, to pursue his or her administrative claim despite the passing of the two year limitations period: Whenever an action or proceeding in which the United States is substituted as the party defendant . . is dismissed for failure to first present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed timely presented under section 2401(b) of this title if – (A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and
(B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.
28 U.S.C. § 2679(d)(5).
This statute does not save plaintiff’s claim in this instance. The accident occurred on May 31, 1990. Plaintiff did not file his state court action until February of 1993 — two years and nine months after the claim accrued. Nor are there any equitable considerations tolling the statute of limitation in this case. See Van Lieu v. United States, 542 F. Supp. 862 (N.D.N.Y. 1982) (plaintiff’s claim not barred where defendant purposely concealed the fact that he was a federal employee until after statute of limitation ran).
Accordingly, it is ordered that the government’s motion to dismiss be granted.
Brasky v. Jermain, 917 F. Supp. 175, 176-178 (W.D.N.Y. 1995)
A real problem is what happens if the state action is dismissed, before it is removed to the United States District Court.
The United States will always try to claim that it is entitled to the verbal tort threshold, or limitation on lawsuit, for all motor vehicle accidents. In Witty v. U.S., 947 F. Supp. 137, (D.N.J.,1996), the court, with very little description of the vehicles involved, other that they were “motor vehicles” determined that the United States was entitled to the verbal tort threshold defense..
…This action arises out of a motor vehicle accident in Wayne, New Jersey, on May 9, 1994, between a motor vehicle owned and operated by the Plaintiff and a motor vehicle owned by the United States and operated by Edward DeRobertis, an agent of the Bureau of Alcohol, Tobacco and Firearms, while acting in the scope of his employment…
…Plaintiff, however, contends that he is not subject to the verbal threshold since the first prong is not met. Plaintiff argues that because United States is self-insured, it is not an “owner” of an automobile within the meaning of New Jersey’s no-fault insurance law. While the United States does not dispute that it is literally not an “owner, registrant operator or occupant of an automobile to which [N.J.S.A. § 39:6A-4] personal injury protection coverage, regardless of fault, applies,” see N.J.S.A. § 39:6A-8, it maintains that it is nonetheless entitled to rely upon the immunities provided by the verbal threshold. The United States contends that, because the FTCA provides only a limited waiver of sovereign immunity by subjecting the United States to tort claims “in the same manner and to the same extent as a private individual under like circumstances,” see 28 U.S.C. § 2674, the United States must be analogized to a private owner of an automobile covered by New Jersey’s no-fault insurance….
The Federal Employees Compensation Act, 5 U.S.C. §§ 8101, et seq., like New Jersey's no-fault insurance, "provides that federal government employees are entitled to no-fault benefits for any injuries stemming from the performance of work, including unlimited coverage for medical bills, rehabilitation, and lost wages, and also provides death benefits tied to an employee's salary." Allstate, 864 F. Supp. at 1019; United States Fidelity, 728 F. Supp. at 654; see also 5 U.S.C. §§ 8101, et seq. The maintenance of such a "financially responsible system of self-insurance," by the United States, see Nationwide Mutual, 3 F.3d at 1396, places it in "like circumstances" with a private owner of an automobile covered by New Jersey's no-fault insurance. The entirely fortuitous circumstance that Plaintiff was involved in an automobile accident with a vehicle owned and operated by the United States should not place him in a more advantageous position than had he been involved in an accident with a privately owned vehicle.
…Accordingly, I find that the Plaintiff is subject to New Jersey's statutory verbal threshold and may only recover from the United States those non-economic damages which satisfy New Jersey's "verbal threshold."…
Witty v. United States, 947 F. Supp. 137, 142 (D.N.J. 1996)
Frankly, from Witty, we do not know whether or not the ATF agent operating a sedan, a pick up truck, or a SWAT truck. In light of this, I file a “certificate of permanency “ on all motor vehicle cases with the United States, pursuant to NJSA 39:6A-8(a), unless the client is entitled to “no threshold”. The USPS will try to argue that all of its mail delivery vehicles, particularly the small jeep vehicles, are entitled to raise this defense.
Administrative Claims Issues
An administrative claim is “presented” when a claim for a “sum certain “is presented to the agency that is responsible for the employee who was negligent. If a proper administrative claim is not presented to the agency, it will be a jurisdictional defect, which will result in the court dismissing the claim. The easiest way to do this is to complete a Standard Form 95, and send it to agency by certified mail, return receipt requested, for each claimant. The New Jersey Lawyer’s diary has a fairly comprehensive list of federal agencies, which is fairly comprehensive.
Each “claimant” means that if there is a loss of consortium claim, the safest course of action is to file a separate SF-95 for the individual who was injured and a separate SF-95 for the individual who has the loss of consortium. The case of McDevitt v. United States Postal Serv., 963 F. Supp. 482, 483-485 (D. Pa. 1997) demonstrates both how inattention to this detail, will result in the consortium claim being dismissed, and that the United States Attorney’s office will seize on the opportunity to file a motion to dismiss, whenever given the opportunity to do so:
…The relevant facts are uncontested. Plaintiffs allege that, on or about December 21, 1994, Mrs. McDevitt was injured in a motor vehicle accident with a Postal Service vehicle operated by a Postal Service employee in the course and scope of his employment. Mrs. McDevitt presented her administrative claim to the Postal Service, under cover letter from her attorney, by letter dated July 16, 1996. The only mention of Mr. McDevitt on this claim form was as an additional owner of the vehicle driven by his spouse when she was involved in the accident. Mr. McDevitt has filed no administrative claim of his own with the Postal Service. Mrs. McDevitt’s claim was denied by letter dated August 4, 1996.
The instant Complaint, filed by Plaintiffs on November 4, 1996, includes a claim by Mr. McDevitt for lost support, consortium and services from his spouse. Defendant now moves to dismiss this claim on the grounds that Mr. McDevitt failed to exhaust the administrative remedies that are a prerequisite to suit and that the applicable statute of limitations bars him from doing so now…
…We decline to do so. Though our Court of Appeals has never ruled on this precise issue, it has instructed in no uncertain terms that § 2675(a) is to be strictly construed and no exceptions are to be implied. See Peterson, 694 F.2d at 944; Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971); Ferguson, 793 F. Supp. at 110. As the court explained in Ferguson, “the law of Pennsylvania confers separate and distinct rights upon husband and wife and requires separate verdicts to be returned.” Id. at 110. Thus, we hold here as we did in Johnson that the administrative procedures outlined in § 2675(a) must be pursued separately with respect to each claim in order for this Court to have jurisdiction…
McDevitt v. United States Postal Serv., 963 F. Supp. 482, 483-485 (D. Pa. 1997)
The Standard Form 95
When filling out the SF-95 it is of critical importance to make a claim for “a sum certain.” This is done by completing boxes 12a through 12d, by filling in a number. This is not the place to play the type of games that one is forced to with most insurance carriers. Indefinite phrases such as “to be supplied” “uncertain” & “still treating” are “not sums certain” and must not be used. While there are cases, that allow for the filing of an administrative claim, without using a SF-95, failure to use the SF-95 usually will result in litigation over whether or not the claim was properly presented to the administrative agency.
…A claim against the United States Postal Service is made by submitting a Standard Form 95 (Claim for Damage, Injury or Death). 28 U.S.C. § 2675(a) states that “an action shall not be instituted against the United States which has been presented to a federal agency unless such federal agency has made final disposition of the claim.” The defendants argue that it never made a final disposition of plaintiff’s claim because it never received one. However, plaintiff’s insurance company had sent a claim to the United States Postal Service in the amount of $ 9,248.28 on October 17, 1986, well within the statutory time limit. That claim was not however, accompanied by a Standard Form 95. By August, 1987, plaintiff had not heard from the Postal Service’s claims department. In response to plaintiff’s inquiry, the Postal Service, on August 18, 1987, stated that since no claim had been presented to them within the statutory time period they no longer had authority to consider the matter…
..As previously noted, plaintiff’s claim sent by its insurance company indicates a sum certain of $ 9,248.28. The letter makes specific reference to the accident on March 12, 1985 and indicates the type of property damage that plaintiff sustained. This court joins the weight of authority and holds that a claim sent to a federal agency by an insurance company on behalf of a claimant containing a sum certain and an account of the incident sufficient for a final agency determination constitutes a “claim” within the meaning of § 2401(b) of the Federal Tort Claims Acts. Accordingly, summary judgment on this basis will be denied.
Posnak & Turkish, Inc. v. United States Postal Service, 1988 U.S. Dist. LEXIS 12123, 3-6 (D.N.J. 1988)
The amount claimed on the administrative claim will cap the amount that can be recovered at trial, in most circumstances. Although, it is possible that changed circumstances, not readily foreseeable at the time of the claim, may allow the court to award an amount that was greater than claimed at the administrative level, this is an uncertain means of relief, which will invariably result in a tremendous amount of additional litigation over whether or not there was truly a set of changed circumstances. As a result of this, it is necessary to always request the largest amount that you can possibly justify at the administrative level. It is extremely embarrassing to try to explain to the client, that the judge just awarded $75,000, but because you only claimed $50,000 at the administrative level, the United States will only have to pay $50,000 worth of the judgment.
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