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Failure to exhaust admin remedies dooms tort claim

Virginia Lawyers Weekly//August 7, 2023

Failure to exhaust admin remedies dooms tort claim

Virginia Lawyers Weekly//August 7, 2023//

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Where a woman failed to exhaust her administrative remedies before filing suit for injuries alleged suffered in an auto accident involving a government employee, her suit was dismissed.


This case arises out of injuries Cristina Campos suffered when an employee of the Department of Homeland Security and the United States Secret Service rear-ended plaintiff’s vehicle. The government has moved to dismiss for lack of subject matter jurisdiction.


The Federal Tort Claims Act, or FTCA, “bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” The mandate in 28 U.S.C. § 2675(a) that claimants file an administrative claim “is jurisdictional and may not be waived.” Accordingly, to present a personal injury claim to an agency under the FTCA, (1) “the claimant must present it to the agency in writing by means of an SF 95 or an equivalent” and (2) “the writing must include a claim for money damages in a sum certain.” This must be done within two years of the accident.

In this case, while plaintiff submitted an SF 95 to the Secret Service, she failed to identify any sum certain for her personal injury claim, instead stating that such amount was “[n]ot available at the moment” — notwithstanding the warnings on the SF 95 that plaintiff was risking forfeiture of her rights by failing to identify a sum certain of her claimed damages.

Plaintiff argues that she “was incapable of knowing the extent of her personal injury damages” at the time she submitted the form, given the “recency of her accident.” But the Fourth Circuit has found such arguments unavailing, holding that it “overlooks the flexibility provided by the FTCA in giving claimants ample opportunity to amend their claims as the evidence develops.”

Next, plaintiff argues that the relevant regulations do not require the sum certain to be specifically included in the SF 95, but instead the claim with a sum certain can be presented in “an executed Standard Form 95 or other written notification of an accident.” Here, plaintiff argues, she not only filed the SF 95 with the Secret Service but also filed the civil complaint in this court in which she specified a “sum certain on the value of her personal injury claim: $1,000,000.” And that filing was within two years of the underlying accident.

This argument fails for several reasons. First, the Supreme Court has clearly held that “[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies,” and when a claimant “fail[s] to heed that clear statutory command,” the district court properly dismissed the suit. Second, even if were possible to put an agency on notice of a sum certain for a claim by reference to a filed complaint, the record in this case demonstrates that plaintiff served the government more than two years after the accident.

Finally, plaintiff argues that the Secret Service Chief Counsel’s letter to her prior lawyer “dictated the terms for the filing of a proper administrative claim against the federal government.” Not so. Nothing in the letter would give the reader any “reasonable assumption” that the Chief Counsel was shouldering a duty to monitor dockets proactively for filings against his agency and relieve claimants like plaintiff of the duty to notify and present their claims to the agency.

Defendant’s motion to dismiss granted.

Campos v. United States of America, Case No. 3:22-cv-00059, July 18, 2023. WDVA at Charlottesville (Moon). VLW 023-3-397. 11 pp.

VLW 023-3-397

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