Federal Tort Claims Act: How to Sue the U.S. Government for Injury

The Federal Tort Claims Act (FTCA), codified at 28 U.S.C. §§ 1346(b) and 2671–2680, establishes the legal mechanism through which injured parties may bring negligence claims against the United States government — a sovereign that would otherwise be immune from suit. This page covers the statutory framework, the administrative and judicial process, the injury scenarios most commonly governed by the FTCA, and the critical boundaries that determine whether a claim qualifies. Understanding these boundaries matters because errors at the administrative stage — particularly missed deadlines — extinguish the right to sue entirely.

Definition and Scope

Before 1946, sovereign immunity effectively barred private parties from suing the federal government without Congressional consent on a case-by-case basis. The FTCA created a permanent, categorical waiver of that immunity for a defined class of tort claims. The statute allows suits against the United States for money damages for personal injury, property damage, or death caused by the negligent or wrongful act or omission of any federal employee acting within the scope of employment, under circumstances where a private person would be liable under the law of the state where the act or omission occurred (28 U.S.C. § 1346(b)(1)).

Key definitional parameters:

• Federal employee: The FTCA covers employees of federal agencies, not independent contractors. The Department of Justice's FTCA guidance distinguishes employees (whose torts are absorbed by the United States) from contractors (who remain personally or corporately liable).
• Scope of employment: Conduct must fall within the employee's official duties. Off-duty conduct by a federal worker generally does not trigger FTCA coverage.
• State law governs liability: Unlike most federal litigation, the substantive negligence standard applied is that of the state where the negligent act occurred — not a uniform federal standard.
• No punitive damages: The statute explicitly prohibits punitive damages against the United States (28 U.S.C. § 2674).
• No jury trials: All FTCA cases are decided by a federal district court judge sitting without a jury.

The FTCA does not waive immunity for all government torts. Thirteen enumerated exceptions in 28 U.S.C. § 2680 carve out categories the statute does not cover, most notably the discretionary function exception, which protects government conduct involving policy-level judgment or planning.

How It Works

The FTCA imposes a mandatory two-stage process. Bypassing or mishandling the first stage bars federal court jurisdiction.

Stage 1 — Administrative Claim

1. The claimant files Standard Form 95 (SF-95), or an equivalent written notice, with the specific federal agency whose employee caused the harm.
2. The claim must be filed within 2 years of the date the claim accrues (28 U.S.C. § 2401(b)). This deadline is jurisdictional and is not extended by equitable tolling in most circuits.
3. The written claim must include a sum certain — a specific dollar amount for damages. Failure to state a sum certain renders the administrative claim defective.
4. The agency has 6 months to respond. It may accept, deny, or make no decision.
5. A final denial triggers the right to sue. If the agency fails to act within 6 months, the claimant may treat the inaction as a final denial and proceed to court.

Stage 2 — Federal District Court

1. The claimant has 6 months from the date of the agency's final denial to file suit in the appropriate federal district court (28 U.S.C. § 2401(b)).
2. The United States is the only proper defendant — not the individual federal employee.
3. The Department of Justice defends the United States in FTCA litigation.
4. Damages are limited to compensatory damages only, calculated under state law.
5. Any settlement or judgment above $2,500 requires the written approval of either the Attorney General or a designated official, per 28 U.S.C. § 2677.

Settlements reached at the administrative stage are final and binding. A claimant who accepts an agency settlement waives the right to additional judicial relief, even if subsequent injuries emerge from the same incident, unless the settlement agreement expressly preserves that right (28 U.S.C. § 2672).

Common Scenarios

The FTCA covers a broad range of personal injury situations arising from federal government operations. The most frequently litigated categories include:

Veterans Affairs Medical Malpractice: Claims arising from surgical errors, diagnostic failures, or negligent treatment at VA hospitals account for a substantial share of FTCA filings annually. The medical malpractice standard applied is that of the state in which the VA facility is located.

United States Postal Service Vehicle Accidents: USPS drivers are federal employees. Collisions involving USPS delivery vehicles are among the most numerically common FTCA claims, processed initially through the USPS Claims and Accounting Operations office before any court filing.

Military Medical Treatment (Non-Combat): Active-duty military personnel were historically barred from FTCA suits under the Feres doctrine (established in Feres v. United States, 340 U.S. 135 (1950)), which held that injuries incident to military service fall outside the FTCA's waiver. The National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92), enacted December 20, 2019, created a limited administrative claims process for active-duty medical malpractice, allowing claims directly with the Military Departments — but not full FTCA court suits — for qualifying instances. Claims must be submitted to the applicable Military Department within two years of the incident and are subject to specific procedural requirements established under the Act, including review by a panel of medical experts before any award determination. The Act set a cap on recoverable damages and established appeal procedures within the administrative process.

Federal Law Enforcement Actions: Claims arising from negligent or wrongful conduct by FBI, DEA, Border Patrol, or other federal law enforcement agents during law enforcement activities. Intentional torts by law enforcement — assault, battery, false imprisonment, and abuse of process — are specifically exempted from the general FTCA waiver but are covered by a separate carve-back provision at 28 U.S.C. § 2680(h), which restores coverage for those intentional torts when committed by federal investigative or law enforcement officers.

National Park and Federal Property Premises Liability: Slip-and-fall incidents, trail accidents, and unsafe conditions on federal lands administered by the National Park Service or Bureau of Land Management fall under premises liability principles applied through FTCA.

Decision Boundaries

The decision to pursue an FTCA claim turns on specific legal thresholds that must be assessed before initiating the administrative process.

FTCA vs. Bivens Claims: The FTCA provides money damages against the United States as an entity. A Bivens claim (derived from Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)) targets individual federal officers for constitutional violations. The two claims are distinct and can sometimes proceed simultaneously, but Supreme Court decisions — including Egbert v. Boule, 596 U.S. 482 (2022) — have substantially curtailed the expansion of Bivens to new contexts.

The Discretionary Function Exception: This is the most litigated FTCA boundary. Under United States v. Varig Airlines, 467 U.S. 797 (1984), and the two-part test articulated in Berkovitz v. United States, 486 U.S. 531 (1988), conduct is protected if (1) it involved an element of judgment or choice, and (2) that judgment was the type the exception was designed to protect — i.e., policy-based decisions. Mandatory safety regulations, by contrast, are not discretionary: if a federal agency failed to follow a specific, mandatory directive, the discretionary function exception does not apply.

Independent Contractor Exclusion: Because sovereign immunity is waived only for federal "employees," claims arising from the negligence of private contractors performing federal work are not cognizable under the FTCA. The burden of proof in distinguishing an employee from a contractor rests on the totality of the agency relationship, not simply how the government labels the worker.

Damage Cap Comparison: Unlike damage caps that apply in state tort systems or under state tort reform statutes, the FTCA imposes no statutory dollar ceiling on