On January 16, 2018 San Antonio, Texas, Federal judge Xavier Rodriguez rejected a request by a relative of one of the Sutherland Springs shooting victims' permission to interview several U.S. Air Force officials about the agency’s handling of the shooter’s case. Judge Rodriguez will decide whether to allow the deposition of those responsible for reporting the shooter’s military convictions to the FBI on February 6, 2018.
Several persons filed a notice of claims to the Air Force through the Federal Tort Claims Act (FTCA) which requires persons who are seeking monetary damages from a government agency to first file an administrative notice of claim with the agency alleged to have committed a wrongdoing. That agency has six months to respond. If the matter isn’t settled, the claimants can then file a lawsuit in federal court. Attorney Thomas J. Henry filed a petition in federal court that sought to preserve the testimony of USAF officials who might have been responsible for reporting the convictions of shooter Kelley pursuant to Federal Rule 27 and Henry says he plans to eventually file a lawsuit in federal court.
Conflict of Laws: FRCP 27 vs. Federal Tort Claims Act Requirements
Federal Rule of Civil Procedure 27 allows a party to take a deposition of a witness pre-litigation by filing a verified petition stating the that the petitioner expects to be a party in future litigation, the subject matter of the expected action, petitioner’s interest, and the facts the petitioner wants to establish by testimony and reasons for perpetuating it, as well as the names of persons who petitioner, believes to be adverse. The Court may permit these depositions of the witnesses only if it prevents failure or delay of justice. Judge Xavier Rodriguez of the Western District Court in San Antonio denied attorney Thomas J. Henry’s request to depose 8 fact witnesses but will consider one witness at the upcoming hearing.
28 U.S.C. § 2675(a) of the FTCA, however, expressly states that the administrative notice of claim process must first be exhausted before a lawsuit can be initiated in federal court. The policy purpose behind this law was to allow the Government sufficient time to investigate the claim and to decide whether to settle the claim or pursue litigation. The FTCA constitutes a waiver of the Government’s sovereign immunity, and therefore, persons suing the government must honor these notice requirements.
Nonetheless, a compelling argument exists for claimants who believe that Federal Rule 27 should allow deposition testimony from the officials who handled Devin Kelley’s convictions personally before their testimony is forgotten. Either way, Judge Rodriguez’s decision will have to settle this conflict of laws, and his decision will have an effect on any claimants who have already filed claims against the Air Force for failing to report the criminal convictions of shooter Devin Kelley.
If you or a loved one was injured in the Sutherland Springs shooting, you may have a potential claim against the Air Force. The lawyers with the Ammons Law Firm understand the legal issues and have the experience to assist you. Call (281) 801-5617.
