Introduction

Consider a thirty-five-year-old man out for a jog on an autumn afternoon. He regularly runs the same route through his Virginia suburb and is always careful to take precautions to avoid injury; this afternoon is no different. But as he makes his way along the sidewalk, a United States Postal Service (USPS) truck approaches from behind. It is not traveling at a particularly high speed, but its driver is distracted; he negligently swerves onto the sidewalk, and he strikes the jogger. The nature of the collision is such that the jogger is not immediately killed, but he sustains critical and ultimately fatal injuries—his doctors place him on life support, and although he clings to life for a time, he dies twenty months later.

At the time of his death, the man clearly had a valid state law cause of action for personal injury against the USPS driver: under Virginia law, a personal injury claim can be brought within two years of the date of the injury. Moreover, he had a valid federal claim under the Federal Tort Claims Act (FTCA), which allows individuals to bring suit against the United States for the torts of federal employees. Indeed, under 28 USC § 2401(b), a provision of the FTCA, an individual who has been injured by a government employee has two years, beginning at the time that his cause of action “accrues,” to file an administrative claim with the appropriate federal agency. Since his personal injury claim accrued when he was struck, his administrative claim would have been barred neither from resolution by the USPS nor from subsequent adjudication in federal court.

However, when his widow files an FTCA wrongful death claim against the government five months after her husband’s death—well within the statutorily defined two-year limitations period—her complaint is dismissed as time-barred. Surprisingly, it turns out that the cause of action for her husband’s wrongful death accrued not at the time of his death but before he even died—that is, at the time of the accident. This paradoxical result is the consequence of two factors. First, the FTCA does not create federal causes of action but rather defines the contours of the potential liability of the United States by incorporating state substantive law—that is, by permitting tort liability only “where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Thus, the federal statute incorporates state law in defining the injury to be compensated. And second, Virginia law provides a cause of action for wrongful death that is derivative of and dependent on the decedent’s underlying injury. Under the approach that prevails in the Fourth Circuit—and among the majority of the circuits—the conjunction of these two facts creates a situation in which an FTCA wrongful death claim brought within two years of death but not within two years of the underlying injury is time-barred under § 2401(b).

This counterintuitive result is just one branch of a broader confusion that stems from the ambiguity inherent in § 2401(b)’s use of the word “accrues.” Because the statute fails to define the term “accrues,” it is not clear what triggers the running of this two-year limitations period. Granted, in many cases, the nature of the injury renders the question of accrual unproblematic— when an individual is injured in a car accident involving a federal employee, it is usually obvious that the plaintiff’s personal injury claim accrues at the time of the accident. However, when an injury’s full extent is delayed in its manifestation, there may be multiple points at which a cause of action can be held to have accrued.

This is a problem that demands resolution. With approximately two thousand federal suits and fifteen thousand to thirty thousand administrative claims filed under the FTCA each year, the lack of a clear rule may well have substantial systemic effects. Most saliently, it creates significant uncertainty for potential plaintiffs, who, like our hypothetical widow, might have valid wrongful death claims against the federal government but might not understand exactly when they must file those claims against the relevant federal agency. Concomitantly, many deserving plaintiffs may be denied recovery—a result that engenders the systematic undercompensation of such plaintiffs and subverts the FTCA’s aim of providing just compensation for individuals who are injured by the agents of the US government. Furthermore, this lack of clarity undermines the efficient and consistent administration of the FTCA, as the resultant myriad of accrual rules undercuts the federal uniformity interest embodied in § 2401(b)’s two-year limitations period.

In spite of these concerns, federal courts have been unable to arrive at a solution. The Supreme Court addressed the question of FTCA accrual in Kubrick v United States, but it failed to provide an answer applicable to the wrongful death context. And the circuits are split on this question. The majority of circuits hold that the rule determining accrual should be sensitive to the character of the underlying state cause of action for wrongful death— specifically, whether the statute provides for an independent or a derivative cause of action. This approach emphasizes fidelity to state substantive tort law at the expense of the uniform implementation of the FTCA’s limitations period, which is undermined when the effective length of the limitations period with respect to death varies from state to state. By contrast, a minority of circuits adopt a blanket rule that establishes that, as a matter of federal law, a wrongful death claim can never accrue before death. Such a blanket federal rule supports justice, efficiency, and uniformity in the application of the FTCA’s statute of limitations, but it undermines the Act’s sensitivity to state law, as well as the limited nature of its waiver of sovereign immunity.

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