As a sovereign, the United States is immune from suit unless it consents to be sued. That consent must be unequivocally expressed, and the terms of such consent define the court’s subject matter jurisdiction. The Federal Tort Claims Act (“FTCA”) includes a limited waiver of sovereign immunity, which provides, in part, the following: “An action shall not be instituted upon a claim against the United States for money damages for . . . personal injury . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his [or her] 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 . . . .”
The applicable statute of limitations, 28 U.S.C. § 2401(b), provides that a claimant must present his or her tort claim against the United States “in writing to the appropriate Federal agency within two years after [the] claim accrues” or it “shall be forever barred[.]” The tort claim accrues “when a plaintiff knows of both the existence and the cause of [the] injury.” Claimants, therefore, are required to exhaust their administrative remedies before they can initiate a suit in federal court, and the requirement that the appropriate Federal agency act on a claim before suit can be brought is jurisdictional and cannot be waived.”
The Westfall Act allows claimants who initially file their FTCA claims in the wrong forum and are time-barred to save their claims so long as they meet certain requirements. 28 U.S.C. § 2679(d)(5). The Westfall Act’s savings clause saves from being barred by the statute of limitations certain timely claims filed in the wrong forum, such as in a state or a federal court rather than with the appropriate administrative agency. Therefore, the plaintiff whose suit is removed to a district court, and then dismissed because he or she failed to bring the timely required administrative claim, will be credited with the date that he or she filed the claim in the wrong forum for purposes of the FTCA’s statute of limitations.
For the savings clause to apply on the basis that it was timely filed but in a state court, plaintiffs must have: (1) filed their state court action within two years of the alleged injury; (2) presented their FTCA claim to the correct federal agency within 60 days of the removal and dismissal of the wrongly filed state court action; and (3) if denied by the agency, appealed to a federal district court within six months.
In the case the United States Court of Appeals for the Third District decided on November 10, 2020, the plaintiffs never presented their claim to any Federal agency; rather, they faxed and hand delivered the SF-95 to the Pike County Health Center, where the alleged medical malpractice took place. The Federal Appellate Court held: “Appellants [plaintiffs] failed to present their claim to the appropriate federal agency, HHS, and their arguments that the Westfall Act saves their claim lacks merit. Accordingly, we will affirm the Court’s February 28, 2020 order granting the Government’s Motion for Summary Judgment.”
Source Knapp v. United States of America, No. 20-1537.
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