Filing a Notice of Claim Against a Government Entity: A Practical Checklist

Administrative Law > Government Claims and Sovereign Immunity | Published 26 March 2024 - Updated 22 March 2026 | UpLaw - uplaw.us

How to Use This Checklist

Phases 1 through 3 run in the first week, and often in the first day. Phases 4 through 6 run while the claim is pending. Phases 7 through 9 follow the agency's response.

The doctrine is in government claims and sovereign immunity. The narrative orientation is suing the sovereign. The forms are in the government claim and immunity analysis toolkit.

Phase 1 — Identify the Entity

☐ Determine which government is involved: federal, state, county, municipal, school district, special district, public authority, transit agency, public hospital, tribal, foreign, or a private contractor.

☐ Do not guess. A public hospital may be a state entity, a county entity, or a private nonprofit; a transit authority may be an arm of the state or an independent body. Pull the enabling statute.

☐ Check whether the individual was an employee or a contractor. 28 U.S.C. § 2671 excludes contractors from the federal definition of employee, and state acts have analogous provisions.

☐ Check for statutory deeming provisions that treat certain federally supported providers as federal employees, which reverses the analysis and makes presentment mandatory.

☐ Determine whether a state entity is an arm of the state — funding, control, and whether a judgment would be paid from the treasury.

☐ For a tribal entity, determine whether immunity applies and whether any waiver exists. See contracting with a tribal entity.

☐ Identify every potentially responsible entity, because notice may be required to more than one.

Phase 2 — Find the Waiver and the Deadlines

☐ Classify the claim: tort, contract, constitutional, statutory, or a request for non-monetary relief. Each has its own waiver.

☐ For a federal tort claim, the waiver is at 28 U.S.C. § 1346 with the liability measure at 28 U.S.C. § 2674.

☐ Calendar the federal presentment deadline: two years from accrual under 28 U.S.C. § 2401.

☐ Calendar the post-denial suit deadline: six months from the mailing of the notice of final denial, also under 28 U.S.C. § 2401.

☐ For a state or local entity, find the state tort claims act and identify the notice period. It is frequently between thirty days and one year, and it is separate from the limitations period.

☐ Calendar the notice deadline the day the file opens, with a reminder well before it.

☐ Check whether the deadline is tolled for minority or incapacity in this jurisdiction — many are not, or only partially.

☐ Confirm that settlement discussions do not toll anything unless a writing says so.

☐ For a federal constitutional claim under 42 U.S.C. § 1983, note that state notice statutes do not apply, but any parallel state claim requires notice.

☐ For a contract claim against the United States, identify the contract disputes procedure and the Tucker Act framework at 28 U.S.C. § 1491, and note the bar at 28 U.S.C. § 1500.

☐ For non-monetary relief against a federal agency, identify final agency action under 5 U.S.C. § 704 and the waiver at 5 U.S.C. § 702.

Phase 3 — Prepare and Deliver the Notice

☐ Identify the exact recipient the statute designates — frequently a clerk, a business manager, a risk manager, or an attorney general, not the head of the agency.

☐ Use the required form where one exists. Federal tort claims use a standard form.

☐ State a sum certain. For federal claims, presentment without a specific dollar amount is not presentment. State a figure high enough to cover the ultimate claim, because 28 U.S.C. § 2675 limits the action to the amount presented absent newly discovered evidence.

☐ Include every required element: claimant identity and address; date, time, and place; a description of the incident; the injuries and damages; the employees or conduct involved; and any verification the statute requires.

☐ Describe the incident with enough detail to allow investigation, which is the stated purpose of the requirement.

☐ Attach supporting documentation — medical records and bills, wage documentation, repair estimates, and photographs. Agencies with adequate information settle; agencies with a bare form do not.

☐ File on time even if the file is incomplete. A timely imperfect notice can often be amended; a late perfect one cannot be revived.

☐ Deliver by a method that produces proof — certified mail with return receipt, or personal service with an affidavit.

☐ Retain proof of delivery in the file permanently.

☐ File separate notices for each entity and, where required, for individual employees.

☐ Calendar the response window and the deadline that follows it.

Phase 4 — Run the Exceptions

☐ For a federal tort claim, work through 28 U.S.C. § 2680 item by item: discretionary function; postal matter; tax and customs; admiralty; quarantine; the enumerated intentional torts; fiscal operations; combatant activities; and claims arising in a foreign country.

☐ Check the intentional tort proviso, which permits assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution claims arising from the acts of investigative or law enforcement officers.

☐ Build the discretionary function analysis in four steps:

1. State the specific conduct alleged, not a general failure.
2. Search for a statute, regulation, manual provision, or written policy prescribing that conduct, using mandatory language.
3. Match the directive to the conduct.
4. If a mandatory directive was violated, the exception fails under Berkovitz v. United States, 486 U.S. 531; if the conduct was discretionary, address the policy presumption of United States v. Gaubert, 499 U.S. 315.

☐ Request the governing manuals and standard operating procedures by name in the first document requests, along with the revision in effect on the date of the conduct and the employee's training records.

☐ Confirm the private-analogue requirement is satisfied under the law of the place where the conduct occurred.

☐ For state claims, identify the statutory immunities: discretionary acts; legislative and judicial functions; police and fire protection; plan or design of public improvements; licensing and inspection; and the acts of independent contractors.

☐ Check any damages cap and whether it is per claimant or per occurrence.

Phase 5 — Identify the Defendants and Their Immunities

☐ Determine whether the entity, an official, or both should be named.

☐ For federal tort claims, the United States is the only proper defendant for scope-of-employment conduct; individual employees are substituted out under 28 U.S.C. § 2679.

☐ For a state, remember it is not a person under 42 U.S.C. § 1983 per Will v. Michigan Department of State Police, 491 U.S. 58.

☐ For prospective relief against state conduct, name the official in an official capacity under Ex parte Young, 209 U.S. 123, and seek prospective relief only.

☐ For a municipality, plead a policy, custom, final policymaker decision, or failure to train as Monell v. Department of Social Services, 436 U.S. 658, requires. Vicarious liability is unavailable.

☐ For individual officers, anticipate qualified immunity and identify the precedent placing the specific question beyond debate; see qualified immunity and the clearly established right.

☐ Check absolute immunities for judges, prosecutors, legislators, and witnesses.

☐ For a federal officer constitutional claim, assess the new-context analysis under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388.

☐ Consider conspiracy claims under 42 U.S.C. § 1985 where the elements are present.

☐ Confirm fee entitlement under 42 U.S.C. § 1988 and jurisdiction under 28 U.S.C. § 1331.

Phase 6 — Preserve and Build

☐ Send a preservation letter to the entity identifying the incident, the records, and any video, and demanding suspension of routine destruction.

☐ Request public records early. Incident reports, dispatch logs, body camera footage, inspection records, and maintenance logs are frequently obtainable outside litigation; see filing a FOIA request and appealing a denial and drafting, filing, and appealing a public records request.

☐ Identify and interview witnesses before memories fade and before employees are transferred.

☐ Photograph the scene and any physical evidence.

☐ Obtain the client's complete medical and wage records, which the notice's damages figure must be able to support.

☐ Document the damages as the claim develops; see documenting and proving damages in a civil case.

☐ Track prior similar incidents where a municipal liability theory is contemplated.

☐ Do not give a recorded statement without understanding the claim and its framework.

Phase 7 — The Agency Response

☐ Diary the six-month period for a federal claim under 28 U.S.C. § 2675.

☐ Respond to information requests promptly; agencies deny incomplete claims.

☐ Evaluate any administrative settlement offer carefully. Under 28 U.S.C. § 2672, acceptance is final and conclusive and a complete release. Do not accept before the injury has stabilized.

☐ On a written denial, calendar the six-month suit deadline immediately from the date of mailing.

☐ If the agency does not respond within six months, you may treat the failure as a denial and file — but confirm the strategic timing first.

☐ For state claims, note the separate suit deadline the tort claims act imposes after a denial or after the response period.

☐ Preserve the denial letter and the envelope, because the mailing date controls.

Phase 8 — Filing Suit

☐ Confirm the forum. Some claims go to a court of claims or a claims commission rather than a court of general jurisdiction.

☐ Confirm venue, which for federal tort claims runs under 28 U.S.C. § 1402.

☐ Plead exhaustion with the presentment date, the denial date, and the amount presented.

☐ Do not plead a sum exceeding the amount presented unless newly discovered evidence supports it.

☐ Expect a bench trial in a federal tort case under 28 U.S.C. § 2402, and prepare proposed findings.

☐ Do not plead punitive damages against the United States; 28 U.S.C. § 2674 bars them.

☐ Serve properly. Federal claims require service on the agency, the United States Attorney, and the Attorney General.

☐ Anticipate an early immunity motion and be ready to respond with the mandatory directive, the policy or custom evidence, or the clearly established precedent.

☐ Avoid duplicate filings implicating 28 U.S.C. § 1500.

☐ Where non-monetary relief is sought, plead the APA framework at 5 U.S.C. § 702, 5 U.S.C. § 704, and 5 U.S.C. § 706, noting the exceptions at 5 U.S.C. § 701 and interim relief under 5 U.S.C. § 705. See challenging agency action under the APA.

Phase 9 — Valuation and Settlement

☐ Apply the damages cap before valuing the case.

☐ Exclude punitive damages and prejudgment interest where they are unavailable.

☐ Add fee entitlement where a civil rights claim carries it under 42 U.S.C. § 1988.

☐ Identify the decision-maker. Ask whether the entity is self-insured, what the retention is, and whether a carrier is involved.

☐ Build in approval time. Federal settlements above thresholds require higher-level approval; municipal settlements often require a public vote.

☐ Explain to the client that settlements with public entities are usually public records, so confidentiality is largely unavailable.

☐ Consider non-monetary terms — a policy change, a training commitment, a written acknowledgment — where the budget will not stretch.

☐ Resolve liens before distribution; see negotiating a settlement and resolving liens before distribution.

Red Flags

⚠ A file opened more than thirty days after an incident involving any public entity. ⚠ A federal claim form with no dollar amount. ⚠ A notice delivered to the agency head rather than the designated officer. ⚠ Reliance on an adjuster's assurance that the deadline is not running. ⚠ An administrative settlement offer while the client is still treating. ⚠ A municipal liability claim pleaded without any policy or custom allegation. ⚠ A state named as a defendant under 42 U.S.C. § 1983. ⚠ A claim against the United States for a contractor's conduct. ⚠ Parallel filings in a district court and the Court of Federal Claims. ⚠ A demand for money damages framed as an APA claim.

Common Mistakes

1. Missing the notice-of-claim deadline while focused on the limitations period.
2. Omitting the sum certain from a federal claim.
3. Presenting to the wrong agency or officer.
4. Understating the amount presented and capping the recovery.
5. Accepting an administrative award prematurely.
6. Failing to request the manuals that defeat the discretionary function exception.
7. Naming the wrong defendant.
8. Pleading vicarious municipal liability.
9. Seeking retrospective damages under the official-capacity fiction.
10. Failing to calendar the six-month post-denial deadline from the mailing date.

Related Documents

• Government claims and sovereign immunity: a comprehensive guide to notice, waivers, and exceptions
• Suing the sovereign: how government immunity actually limits a claim
• The government claim and immunity analysis toolkit
• Bringing a Section 1983 civil rights claim: a practical checklist
• Documenting and filing a civil rights claim against officials: a practical checklist
• Suing the government: how Section 1983 claims are actually built and defeated
• Challenging agency action under the APA: a practical checklist
• Administrative law: a comprehensive guide
• Filing a FOIA request and appealing a denial: a practical checklist
• Contracting with a tribal entity: a sovereign immunity checklist
• Documenting and proving damages in a civil case: a practical checklist
• Negotiating a settlement and resolving liens before distribution: a practical checklist
• Evaluating a new civil case: a practical checklist## The First-Day Worksheet

Complete this before any investigation.

Incident date: ______ Date file opened: ______ Days elapsed: ______

Entity or entities involved: ______ Type of each: ☐ federal ☐ state ☐ county ☐ municipal ☐ school district ☐ special district ☐ authority ☐ tribal ☐ contractor ☐ unknown Enabling statute reviewed? ______

Claim type: ☐ tort ☐ contract ☐ constitutional ☐ statutory ☐ non-monetary relief

Applicable waiver: ______ Notice-of-claim required? ☐ yes ☐ no Deadline: ______ Days remaining: ______ Recipient designated by statute: ______ Required form: ______ Sum certain required? ______ Limitations period for suit: ______ Post-denial deadline: ______

Exceptions to research: ______ Damages cap: ______ Punitive damages available? ______ Jury? ______ Fees? ______

Proper defendant(s): ______ Immunities anticipated: ______ Forum: ______

Calendared: ☐ notice deadline ☐ reminder 30 days prior ☐ limitations period ☐ post-denial deadline

Note. If the "days remaining" line shows fewer than thirty, stop everything else and prepare the notice today with the information available. Investigation continues after filing; the deadline does not wait for it.

Worked Example: Day Eighty-One

A client calls about a fall on a broken stairway at a county courthouse eighty-one days earlier. The state's notice period is ninety days.

Hour one. Entity identified as the county, not the state judiciary — confirmed from the building's ownership records and the county's own maintenance responsibility. Claim type: premises tort. Notice deadline: day ninety, so nine days remain. Statutory recipient: the county clerk, with a copy required to the county attorney. Required contents identified from the statute.

Hour two. Notice drafted from the client's account, the emergency department record, and two photographs the client took. Damages figure set well above current medicals to allow for a possible surgery. Verification prepared as the statute requires.

Day eighty-two. Notice served by certified mail with return receipt to both recipients, and hand-delivered to the clerk with a stamped copy retained.

Day eighty-three. Preservation letter sent demanding retention of maintenance records, work orders, prior incident reports for that stairway, and any video. Public records request filed for the maintenance history.

Week three. The records show four prior complaints about the same stairway and a work order marked "deferred — budget." That document is the case: it establishes notice and defeats any argument that maintenance decisions were unreviewable policy judgments rather than a failure to repair a known hazard.

Had the file sat another ten days, none of it would have mattered.

⭐ Key insight. In government claims, the investigation follows the notice rather than preceding it. Counsel who wait to develop the facts before filing the notice routinely file nothing at all.

Notice of Claim Template

NOTICE OF CLAIM

To: ______ [the officer designated by statute], ______ [address] Copy to: ______ [any additional required recipient]

Pursuant to ______ [statutory citation], claimant gives notice of the following claim.

1. Claimant. Name: ______ Address: ______ Date of birth: ______ Telephone: ______ 2. Representative. Counsel name, address, and telephone: ______ 3. Date and time of the incident. ______ 4. Place of the incident, described with particularity: ______ 5. The incident. [A factual narrative sufficient to permit investigation: what happened, in what sequence, and what condition or conduct caused it.] 6. Public employees or departments involved, to the extent known: ______ 7. Injuries and damages. Physical injuries: ______ Treatment to date: ______ Anticipated future treatment: ______ Lost earnings: ______ Property damage: ______ Other: ______ 8. Amount claimed. $______ [state a sum certain, set high enough to cover the ultimate claim]. 9. Witnesses, to the extent known: ______ 10. Documents enclosed. ______

Claimant reserves the right to supplement this notice as investigation and treatment continue.

Verification [where the statute requires one]: I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

______________________ Date: ______

Notes on use. Paragraph 8 is the paragraph that most often defeats a claim — either by being omitted, or by stating a figure the claimant later exceeds. Paragraph 5 should be detailed enough that an investigator could locate the scene and the records without calling you. Serve by a method producing proof, retain that proof permanently, and diary the response window the same day.

Preservation Letter Template

Dear ______,

This firm represents ______ regarding the incident described in the enclosed notice of claim dated ______.

We request that your agency preserve, and suspend any routine destruction of, the following materials relating to the incident and to the location or equipment involved:

1. Incident, accident, and investigation reports, including drafts.
2. Video from any camera with a view of the location, for the period ______ to ______.
3. Dispatch logs, call recordings, and radio traffic.
4. Maintenance records, work orders, and inspection reports for the preceding ______ years.
5. Prior complaints, claims, and incident reports concerning the same location, equipment, or condition.
6. Applicable policies, procedures, manuals, and training materials in effect on the date of the incident, including the revision number.
7. Personnel and training records for the employees involved.
8. Electronic communications concerning the incident or the condition.

Please confirm in writing that a preservation hold has been implemented and identify the custodians notified.

Notes on use. Item 6 is the one that matters most in a case where a discretionary function or discretionary act immunity will be asserted, and item 5 is the one that matters most where a policy or custom theory is contemplated. Send it with the notice, not after.