The Quality of Mercy Is Not Strained: Interpreting the Notice Requirement of the Federal Tort Claims Act

Under the Federal Tort Claims Act of 1946 {FfCA), the United States is liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances.” This limited waiver of sovereign immunity, subject to certain exceptions, grants federal district courts exclusive jurisdiction over civil tort actions against the United States for money damages. The Act requires a claimant suing the United States to file her claim first with the appropriate administrative agency. If the agency denies the claim, it mails a notice of final denial, and the claimant then has six months to file the claim against the United States in federal court. Failure to file suit within six months from the date of mailing and within two years after the claim accrues “forever bar[s]” the claimant from seeking relief in the courts under the FfCA. The Act does not specify to whom the agency must send the notice of denial. The Department of Justice (DOJ), charged by Congress with administering the Act, therefore promulgated 28 C.F.R. § 14.9(a), which requires that the agency send notice to the claimant, her attorney, or her legal representative. The courts have applied this regulation to claims arising under the Act nearly uniformly, interpreting it to permit an agency to send notice to any of the recipients enumerated in the regulation. They generally have dismissed claimants’ arguments that the notice of denial should have been sent only to them, or alternatively, to their attorneys, often with a succinct reference to the language of section 14.9. In late 1996, however, the Ninth Circuit let slip the dogs of war and held in Graham v. United States that section 14.9(a) requires that the notice of denial be sent only to the claimant’s attorney, if the agency knows that the claimant is represented. The court justified its override of the language of the regulation primarily on the grounds of “prevailing ethical standards.” Sending the notice to the claimant, the Ninth Circuit held, violates the ethical rule that attorneys may not communicate directly with parties they know to be represented. Because the Bureau of Prisons sent the notice of denial to Graham instead of to her attorney, the court permitted Graham’s suit to proceed despite its late filing.