The Government Claim and Immunity Analysis Toolkit

Administrative Law > Government Claims and Sovereign Immunity | Published 25 October 2023 - Updated 25 October 2025 | UpLaw - uplaw.us

What Is in This Toolkit

Twelve working documents plus reference tables, in the order a claim uses them.

The doctrine is in government claims and sovereign immunity. The narrative orientation is suing the sovereign. The sequenced steps are in filing a notice of claim against a government entity.

Decision Map

Situation	Instrument	Also read
New file, government involved	Intake worksheet (Form 1)	Evaluating a new civil case
Entity type unclear	Entity worksheet (Form 2)	Guide, Part 1
Deadlines unknown	Deadline matrix (Form 3)	Guide, Parts 3 and 7
State or local entity	Notice of claim (Form 4)	Checklist, Phase 3
Federal tort claim	Administrative claim memorandum (Form 5)	Guide, Part 3
Evidence at risk	Preservation letter (Form 6)	Issuing a litigation hold and preserving ESI
Records needed	Records request (Form 7)	Filing a FOIA request and appealing a denial
Discretionary function asserted	Analysis worksheet (Form 8)	Guide, Part 4
Multiple defendants	Immunity matrix (Form 9) and defendant chart (Form 10)	Bringing a Section 1983 civil rights claim
Claim denied	Denial response and tracker (Form 11)	Checklist, Phase 7
Valuing the case	Valuation worksheet (Form 12)	Damages and remedies
Settling	Approval checklist (Form 13)	Negotiating a settlement and resolving liens before distribution

Form 1 — First-Day Intake Worksheet

Incident date: ______ File opened: ______ Days elapsed: ______

Entities involved: ______ Type: ☐ federal ☐ state ☐ county ☐ municipal ☐ school district ☐ special district ☐ authority ☐ tribal ☐ foreign ☐ contractor ☐ unknown

Claim type: ☐ tort ☐ contract ☐ constitutional ☐ statutory ☐ non-monetary relief Waiver relied on: ______

Notice of claim required? ☐ yes ☐ no Deadline: ______ Days remaining: ______ Statutory recipient: ______ Required form: ______ Sum certain required? ______ Limitations period: ______ Post-denial deadline: ______

Exceptions to research: ______ Damages cap: ______ Punitive available? ______ Jury? ______ Fees? ______ Proper defendants: ______ Immunities expected: ______ Forum: ______

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

If days remaining is under 30: stop and prepare the notice today.

Drafting notes. This worksheet is the single most valuable page in the toolkit. Complete it before any investigation, any medical record request, and any conversation with an adjuster. The bolded instruction exists because the most common way a government claim is lost is a lawyer investigating diligently through a deadline nobody had looked up.

Form 2 — Entity Identification Worksheet

Entity name as it appears on signage, reports, and vehicles: ______

1. Who owns the property or vehicle? Source checked: ______ 2. Who employed the individual? Source: ______ Employee or contractor? ______ 3. What statute created the entity? Citation: ______ 4. How is it funded? ______ 5. Who appoints its governing body? ______ 6. Would a judgment be paid from the state treasury? ______ 7. Does it have the power to sue and be sued in its own name? ______ 8. Is it characterized as a state agency, a political subdivision, or an independent body by its own statute? ______

Conclusion: ☐ arm of the state ☐ political subdivision ☐ independent authority ☐ federal ☐ tribal ☐ private contractor

Consequence of the conclusion: notice regime ______ ; immunity regime ______ ; proper defendant ______ ; forum ______

Federal-specific: is the individual excluded as a contractor under 28 U.S.C. § 2671? Is there a statutory deeming provision making a nominally private provider a federal employee?

Drafting notes. Questions 4 and 6 decide the arm-of-the-state question in most jurisdictions. The federal-specific line at the bottom catches two errors that recur: suing the United States for a contractor's conduct, and filing an ordinary malpractice action against a provider that is deemed federal, which produces removal, substitution, and dismissal for failure to exhaust — sometimes after the presentment deadline has passed.

Form 3 — Deadline Matrix

Deadline	Authority	Date	Calendared	Reminder set
State notice of claim	______
Second notice recipient, if any	______
Federal administrative presentment	28 U.S.C. § 2401
Agency six-month period	28 U.S.C. § 2675
Suit after written denial	28 U.S.C. § 2401
State suit deadline after denial	______
General limitations period	______
Contract claim submission	______
APA challenge, final agency action	5 U.S.C. § 704

Tolling: minority ______ incapacity ______ discovery rule ______ other ______ Confirmed that settlement discussions do not toll: ☐

Drafting notes. Every row gets a date or the word "none," and the file does not proceed until the matrix is complete. The last checkbox exists because adjusters frequently create an impression that a claim is being handled and no deadline is running; nothing an adjuster says tolls a statutory period unless a writing says so.

Form 4 — Notice of Claim

NOTICE OF CLAIM

To: ______ [officer designated by statute] Copy to: ______

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

1. Claimant name, address, date of birth, telephone. 2. Counsel name, address, telephone. 3. Date and time of the incident. 4. Place, described with particularity. 5. The incident — a narrative sufficient to permit investigation. 6. 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: $______ [a sum certain, set high enough to cover the ultimate claim]. 9. Witnesses known. 10. Documents enclosed.

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

Verification [if required]: I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Drafting notes. Paragraph 8 ends more claims than any other line in government practice — by omission, or by understatement that later caps the recovery. Paragraph 5 should let an investigator find the scene and the records without calling you. Serve by a method producing proof, retain the proof permanently, and diary the response window the same day.

Form 5 — Federal Administrative Claim Companion Memorandum

Submit with the standard claim form.

1. Claimant and counsel. 2. Agency and the reason it is the appropriate agency. ______ 3. The incident, with dates, location, and the federal employees involved. 4. Basis of liability under the law of ______ [the place of the act or omission], with the elements identified. 5. Why the claim is within the waiver: the individual was an employee within 28 U.S.C. § 2671, acting within the scope of employment, and a private person would be liable under state law as 28 U.S.C. § 1346 requires. 6. Why no exception in 28 U.S.C. § 2680 applies, addressing the discretionary function exception specifically and identifying the mandatory directive violated. 7. Damages, itemized, supporting the sum certain stated on the form. 8. Enclosures: medical records and bills, wage documentation, photographs, repair estimates, and the incident report if available. 9. Request for consideration under 28 U.S.C. § 2672 and a written determination.

Drafting notes. Agencies with adequate information settle; agencies with a bare form deny. Paragraph 6 is the paragraph that distinguishes a claim an agency will evaluate from one it will reflexively deny, and it forces counsel to do the analysis early. Note that acceptance of an administrative award under 28 U.S.C. § 2672 is a complete release, so do not invite an offer before the injury has stabilized.

Form 6 — Preservation Letter

Dear ______,

This firm represents ______ regarding the incident described in the enclosed notice dated ______. We request that your agency preserve, and suspend routine destruction of, the following:

1. Incident, accident, and investigation reports, including drafts.
2. Video from any camera with a view of the location, ______ 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, condition, or employee.
6. Policies, procedures, manuals, and training materials in effect on the date of the incident, identified by revision number.
7. Personnel, training, and disciplinary records for the employees involved.
8. Electronic communications concerning the incident or the condition.

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

Drafting notes. Item 6 is the item that decides a discretionary function or discretionary act motion, and item 5 is the item that supports a policy or custom theory. Send this with the notice rather than after; agencies purge on schedules that do not wait for litigation. General preservation practice is covered in issuing a litigation hold and preserving ESI.

Form 7 — Records Request

Request for public records under ______ [federal or state statute].

Requester and contact: ______ Records requested, described so a reasonable employee can locate them:

1. ______ [incident-specific records, by date and location]
2. ______ [the governing manual or policy, with revision number and effective date]
3. ______ [prior similar incidents at the same location, by date range]
4. ______ [maintenance or inspection history, by asset and date range]
5. ______ [training records for identified personnel]

Format requested: electronic, native format where available. Fee agreement: willing to pay up to $______; please advise before exceeding. Fee waiver requested? ☐ yes, on the basis of ______ ☐ no Expedited processing requested? ☐ yes, because ______ ☐ no Partial production requested as records become available.

Drafting notes. Records obtained outside litigation arrive faster and without a discovery fight, and they frequently decide whether a claim is viable. Ask for the manual by name and revision. Appeals of denials follow their own procedures; see filing a FOIA request and appealing a denial and drafting, filing, and appealing a public records request.

Form 8 — Discretionary Function Analysis Worksheet

Step 1 — the specific conduct alleged. Not "the agency was negligent," but: ______

Step 2 — the directive. Statute: ______ Regulation: ______ Manual or SOP, with revision: ______ Written policy: ______ Operative language quoted: ______ Mandatory ("shall," "must," "will") or discretionary ("may," "should," "as appropriate")? ______

Step 3 — does the directive govern this conduct? ______

Step 4 — conclusion. ☐ A mandatory directive was violated. No element of judgment or choice; the exception does not apply. Cite Berkovitz v. United States, 486 U.S. 531. ☐ The conduct was discretionary. Address the presumption of United States v. Gaubert, 499 U.S. 315, by showing the conduct had no plausible policy dimension: ______

Step 5 — discovery needed: manuals and revisions ______ ; training records ______ ; internal audits ______ ; prior enforcement of the same directive ______

Step 6 — for state claims, the analogous discretionary act immunity and its formulation in this jurisdiction: ______

Drafting notes. Complete this before filing, not in response to a motion. Where step 2 produces no mandatory directive, the claim is at serious risk and the client should be told so early. The claimant's best evidence in this area is almost always the government's own written procedure.

Form 9 — Immunity Matrix

Defendant	Type	Immunity asserted	Authority	Our response	Resolved when
United States	Federal	Exceptions	28 U.S.C. § 2680	Form 8	Motion to dismiss
State	Sovereign	Eleventh Amendment; not a person under 42 U.S.C. § 1983	Will, 491 U.S. 58	Name an official for prospective relief	Pleading
State official, official capacity	Sovereign	Damages barred	Ex parte Young, 209 U.S. 123	Seek prospective relief only	Pleading
State official, personal capacity	Qualified	Not clearly established	Precedent identified: ______	Cite controlling case	Early motion; immediate appeal
Municipality	None constitutional	No respondeat superior	Monell, 436 U.S. 658	Policy, custom, policymaker, or failure to train	Pleading and summary judgment
Federal officer	Qualified; new context	Bivens, 403 U.S. 388	Analogize to a recognized context	Threshold motion
Judge, prosecutor, legislator	Absolute	Function performed	Show the function was outside the protected category	Pleading
Tribal entity	Sovereign	Abrogation or waiver required	Locate any express waiver	Pleading
Contractor	Derivative	Government specifications and control	Show independent discretion	Summary judgment

Drafting notes. Fill this in at the pleading stage. Each row identifies a motion that will be filed, when it will be filed, and what evidence answers it — which converts immunity from a surprise into a scheduled event. Note that a qualified immunity denial is immediately appealable, so build the appellate record in the response.

Form 10 — Proper Defendant Chart

Claim	Defendant to name	Do not name	Why
Federal tort	The United States	The employee	28 U.S.C. § 2679 substitution
Federal contract	The United States, in the proper forum		28 U.S.C. § 1491; watch 28 U.S.C. § 1500
Federal agency action	The agency and its head		5 U.S.C. § 702
Federal constitutional damages	The officer personally	The agency	Bivens, 403 U.S. 388
State tort	The state or agency, per the tort claims act	Usually the employee	Statutory substitution
State constitutional violation, prospective	The official in an official capacity	The state	Ex parte Young, 209 U.S. 123
Section 1983 damages	The official personally; the municipality on a policy theory	The state	Will, 491 U.S. 58; Monell, 436 U.S. 658
Conspiracy	The individuals		42 U.S.C. § 1985
Contractor negligence	The contractor	The United States	28 U.S.C. § 2671 exclusion

Jurisdiction: federal question under 28 U.S.C. § 1331; venue for federal tort claims under 28 U.S.C. § 1402; no jury under 28 U.S.C. § 2402. Fees: 42 U.S.C. § 1988 for civil rights claims.

Drafting notes. Naming the wrong defendant is not usually fatal if caught early, and is frequently fatal if caught after a deadline. Complete this chart before drafting the complaint.

Form 11 — Denial Response and Suit Deadline Tracker

Denial received: ______ Date of mailing shown on the letter: ______ Envelope retained? ☐ Suit deadline (six months from mailing, for federal tort claims under 28 U.S.C. § 2401): ______ State post-denial deadline, if applicable: ______ Both calendared with a 45-day reminder? ☐

Reasons given for denial: ______ Which are addressable? ______ Reconsideration available and worth requesting? ☐ yes ☐ no — (Note: a request for reconsideration may or may not restart the period; confirm before relying on it.)

Pre-filing confirmations: ☐ Amount pleaded does not exceed the sum presented, per 28 U.S.C. § 2675 ☐ Forum correct ☐ Venue correct under 28 U.S.C. § 1402 ☐ Exhaustion pleaded with dates ☐ No punitive damages pleaded against the United States, per 28 U.S.C. § 2674 ☐ No jury demand where 28 U.S.C. § 2402 applies ☐ No parallel filing implicating 28 U.S.C. § 1500 ☐ Service planned on the agency, the United States Attorney, and the Attorney General

Drafting notes. The mailing date on the denial letter, not the receipt date, starts the clock — which is why the envelope is retained. Requests for reconsideration are the quiet trap here: counsel who assume a pending reconsideration suspends the suit deadline sometimes discover otherwise after it has passed.

Form 12 — Valuation Worksheet

A. Provable compensatory damages: $______ B. Statutory cap (per claimant / per occurrence): $______ C. Amount presented in the notice (ceiling absent newly discovered evidence): $______ D. Lesser of A, B, and C: $______ E. Punitive damages available? ☐ no against the United States, per 28 U.S.C. § 2674 ☐ no against this public entity ☐ yes against an individual F. Prejudgment interest available? ______ G. Attorney fees: ☐ 42 U.S.C. § 1988 ☐ statutory cap on claimant's counsel fee ☐ none H. Liability probability: __% I. Immunity survival probability: % (the factor everyone omits) J. Cost to judgment: $ K. Time to resolution: ______ months

Expected value: (D + G) × H × I − J = $______

Drafting notes. Line I is what distinguishes a government case from a private one. A claim with strong liability and a fifty percent chance of surviving a discretionary function motion is worth half what it looks like, and the client should hear that number early rather than after two years of expense.

Form 13 — Settlement Approval Checklist

☐ Is the entity self-insured? Retention amount: ______ Carrier involved: ______ ☐ Who holds settlement authority at each level, and what are the thresholds? ☐ Does a governing body vote in a public meeting? Meeting schedule: ______ ☐ For federal claims, is the amount within the agency's authority under 28 U.S.C. § 2672, or does it require higher approval? ☐ Is acceptance of an administrative award a complete release? For federal tort claims, yes. Has the injury stabilized? ☐ Will the settlement be a public record? Has the client been told confidentiality is likely unavailable? ☐ Are non-monetary terms available and valuable to this client — a policy change, training, an acknowledgment? ☐ Are all liens identified and resolved or escrowed before distribution? ☐ Is the allocation among claims consistent with economic substance for tax purposes? ☐ Is court approval required — minor, incapacitated person, class, or estate? ☐ Is the release scope correct as to parties and claims? ☐ Has the payment mechanism and timing been confirmed, recognizing that public payment procedures are slower than private ones?

Drafting notes. Build approval time into every deadline. A settlement agreed in principle with a municipality in March may not be executed until a council meeting in June, and clients who are not warned experience the delay as a failure.

Reference Tables

The federal framework

Authority	Subject
28 U.S.C. § 1346	Jurisdiction; the basic tort waiver; small contract claims
28 U.S.C. § 2671	Definitions; contractor exclusion
28 U.S.C. § 2672	Administrative adjustment; release effect
28 U.S.C. § 2674	Liability measure; no punitive damages or prejudgment interest
28 U.S.C. § 2675	Presentment; six-month period; amount ceiling
28 U.S.C. § 2679	Exclusive remedy; substitution
28 U.S.C. § 2680	Exceptions, including discretionary function
28 U.S.C. § 2401	Two-year presentment; six-month suit deadline
28 U.S.C. § 2402	Trial by the court
28 U.S.C. § 1402	Venue
28 U.S.C. § 1491	Tucker Act
28 U.S.C. § 1500	Pending-claim bar
28 U.S.C. § 1331	Federal question jurisdiction
5 U.S.C. § 701	APA definitions and exceptions
5 U.S.C. § 702	Right of review; immunity waiver for non-monetary relief
5 U.S.C. § 704	Final agency action
5 U.S.C. § 705	Relief pending review
5 U.S.C. § 706	Scope of review
42 U.S.C. § 1983	Civil rights damages action
42 U.S.C. § 1985	Conspiracy
42 U.S.C. § 1988	Attorney fees

Leading decisions

Decision	Proposition
Berkovitz v. United States, 486 U.S. 531	Two-part discretionary function test; mandatory directives defeat it
United States v. Gaubert, 499 U.S. 315	Policy presumption; reaches operational decisions
Monell v. Department of Social Services, 436 U.S. 658	Municipal liability requires policy or custom
Will v. Michigan Department of State Police, 491 U.S. 58	A state is not a person under Section 1983
Ex parte Young, 209 U.S. 123	Prospective relief against state officials
Bivens v. Six Unknown Named Agents, 403 U.S. 388	Implied constitutional damages action against federal officers

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
• Filing a notice of claim against a government entity: a practical checklist
• Suing the government: how Section 1983 claims are actually built and defeated
• Bringing a Section 1983 civil rights claim: a practical checklist
• Documenting and filing a civil rights claim against officials: a practical checklist
• Qualified immunity and the clearly established right
• The civil rights litigation toolkit
• Administrative law: a comprehensive guide
• Challenging agency action under the APA: a practical checklist
• The administrative law toolkit
• Filing a FOIA request and appealing a denial: a practical checklist
• Drafting, filing, and appealing a public records request: a practical checklist
• Federal Indian law: a comprehensive guide to tribal sovereignty and jurisdiction
• Contracting with a tribal entity: a sovereign immunity checklist
• Government contracting: a comprehensive guide
• Damages and remedies: a comprehensive guide
• Documenting and proving damages in a civil case: a practical checklist
• Issuing a litigation hold and preserving ESI: a practical checklist
• Negotiating a settlement and resolving liens before distribution: a practical checklist
• Evaluating a new civil case: a practical checklist