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Timeliness and Effective Service Under the Federal Tort Claims Act (FTCA)

May 8, 2023

Johnston v U.S.A, et al. deals with a negligence suit against the federal government arising from an accident involving a vehicle operated by a federal employee. 2022 U.S. Dist. LEXIS 193377.  Plaintiff initially sued the federal employee in his personal capacity in the D.C. Superior Court and served the employee personally. Plaintiff later concluded the employee was acting in the course of government employment and filed a notice of claim pursuant to the Federal Tort Claims Act (FTCA).  Plaintiff erroneously believed the federal employee worked for the Secret Service and served the incorrect agency.  Since he was a GSA employee, Defendant United States removed the case by filing its Westfall Certification and sought to dismiss the suit based upon ineffective service and the statute of limitations.

First, the United States argued that plaintiff must serve the United States upon removal under the Westfall Act (granting federal employees immunity in certain cases) despite plaintiff having already served the employee.  The court disagreed.  Pursuant to U.S.C. § 2679(c), once an individual employee receives service of process he must “deliver within such time and after date of service…all process served upon [him]…to [his] immediate supervisor” who then must forward the service of process “to the United States attorney for the district embracing the place wherein the proceeding is brought.”  Thus, once the employee is served, he becomes “the agent for service of process for the United States” (citing McGowan v Williams, 623 F.2d 1239, 1244 (7th Cir. 1980)) and no further service of process was necessary when the United States removed the case.

Next, the United States argued that the case should be dismissed based upon the statute of limitations under the FTCA because plaintiff never served a claim on the GSA, only the Secret Service.  Plaintiff argued that service on “any federal agency” or “some federal agency” should suffice.  The court disagreed and ruled plaintiff must submit the claim to the “appropriate Federal agency” pursuant to 28 U.S.C. § 2401(b).  Since plaintiff had not submitted her claim to GSA within two years of the accident, the action was time barred.