Federal Tort Claims Act (FTCA)

The Federal Tort Claims Act (1946) — codified at 28 U.S.C. §§ 1346(b) and 2671–2680 — waived the federal government's sovereign immunity for money damages in a limited but important category of cases: negligent or wrongful acts by federal employees acting within the scope of their employment, under circumstances where a private person would be liable under the law of the state where the act occurred. Before the FTCA, the doctrine of sovereign immunity ("the king can do no wrong") meant you could not sue the U.S. government in court without specific congressional permission — and Congress had to pass individual private bills to compensate individual victims, a cumbersome process. The FTCA created a general, judicially enforceable remedy. Common FTCA claims: medical malpractice at VA hospitals, car accidents involving government drivers, slip-and-fall injuries at federal facilities, and negligent supervision of federal programs. The FTCA has significant exceptions: it does not cover discretionary function (policy judgments and policy decisions are immune — a critical limitation that protects government from liability for regulatory choices), intentional torts (assault, battery, false imprisonment — with specific exceptions for law enforcement officers), claims arising in combat, and foreign country claims. Before filing suit, claimants must exhaust administrative remedies — filing an administrative claim with the responsible agency and waiting 6 months for a response — before going to court. There is no jury trial under the FTCA: cases are tried before a federal judge only, and punitive damages are prohibited.

Current Law (2026)

Legal Authority

• 28 U.S.C. § 1346(b) — Jurisdiction (district courts have exclusive jurisdiction over civil actions against the United States for money damages for injury, loss of property, or death caused by the negligent or wrongful act of any government employee acting within the scope of employment, under circumstances where a private person would be liable)
• 28 U.S.C. § 2674 — Liability (the United States shall be liable in the same manner and to the same extent as a private individual under like circumstances; no punitive damages; no interest prior to judgment)
• 28 U.S.C. § 2675 — Administrative claim prerequisite (a tort claim against the United States must first be presented to the appropriate federal agency; agency has 6 months to settle or deny; suit may not be filed until the claim is denied or 6 months have passed)
• 28 U.S.C. § 2401(b) — Statute of limitations (claim must be presented to the agency within 2 years of accrual; suit must be filed within 6 months of denial)
• 28 U.S.C. § 2680 — Exceptions (FTCA does NOT apply to: discretionary function, combatant activities, claims arising in foreign countries, intentional torts by most employees [except law enforcement], interference with contract, fiscal operations, quarantine, TVA, postal matters, and others)

How It Works

The Federal Tort Claims Act is the primary vehicle for suing the United States government for negligence and other torts in the federal court system. Without the FTCA, you could not sue the government at all — the doctrine of sovereign immunity means the government can only be sued when it consents (see Court of Federal Claims for contract and takings claims). The FTCA provides that consent, with significant limitations.

The United States, as a sovereign, is immune from suit unless it consents to be sued. The FTCA waives this immunity for tort claims arising from the negligent or wrongful conduct of federal employees acting within the scope of their employment, making the government liable "in the same manner and to the same extent as a private individual under like circumstances" — meaning state tort law (of the place where the incident occurred) governs the substantive claim. If a postal truck hits your car, a military hospital commits malpractice, or a federal building's dangerous condition injures you, the FTCA is your remedy. But before filing suit, you must first file an administrative claim (Standard Form 95) with the responsible agency — failure to do so bars the lawsuit entirely. The claim must be filed within 2 years of when the claim accrues (typically when the injury occurs or is discovered). The agency then has 6 months to investigate, settle, or deny; if it denies the claim or fails to respond within 6 months, you may file suit in federal district court within 6 months of the denial. The FTCA's most important exception is the discretionary function exception: the government is not liable for claims based on the exercise of a discretionary function or duty. Policy decisions, planning choices, and judgment calls by government officials are immune. The decision to build a dam at a particular location is discretionary (not liable); negligent maintenance of that dam is operational (potentially liable). This exception is broadly interpreted and is the government's most commonly successful defense.

Under Feres v. United States (1950), the FTCA does not cover injuries to military service members "incident to service" — meaning active-duty personnel generally cannot sue for medical malpractice at military hospitals, training accidents, or other service-related injuries. The Feres doctrine has been widely criticized but repeatedly upheld by the Supreme Court; Congress partially addressed it with the Military Claims Act, which provides an administrative remedy for some service-related injuries without litigation. FTCA cases also carry two structural limitations that reflect the compromise of the government consenting to be sued at all: only compensatory damages are available (no punitive damages against the United States), and cases are tried to a judge in a bench trial rather than to a jury — a notable departure from the ordinary federal jury system.

How It Affects You

If you've been injured through government negligence: The administrative claim (Standard Form 95) is your mandatory first step — file it before you file anything in court. Get Standard Form 95 at gsa.gov, complete it accurately and in detail (the sum claimed on the form is generally your upper limit in any subsequent suit — claim too little and you cap your damages), and submit it to the specific agency responsible for the injury (the VA, USPS, FAA, Army, or whichever agency employed the responsible person). Filing with DOJ or a generic government address is not sufficient. The 2-year statute of limitations to file the SF-95 is jurisdictional — courts have consistently dismissed FTCA cases filed even one day late, with no equitable tolling for most circumstances. The 6-month response window after filing begins running when the agency receives the claim; you may file suit after 6 months without a response (deemed denial) or within 6 months of an actual denial. Do not miss either deadline. Practical advice: file the SF-95 as soon as possible after the incident, engage an attorney experienced in FTCA litigation before the 2-year mark, and keep copies of everything you submit with proof of receipt. FTCA cases are bench trials (judge only, no jury) — which changes litigation strategy. Compensatory damages can be substantial despite the no-punitive-damages rule: negligent vehicle accidents, facility slip-and-falls, and VA medical malpractice have all generated six-figure and seven-figure awards.

If you're a federal employee sued for conduct in your official capacity: The Westfall Act (28 U.S.C. § 2679) provides you a critical protection. If you're personally named in a civil lawsuit for negligent or wrongful acts within the scope of your federal employment, the Attorney General (through DOJ) can certify that you were acting within scope — and when that certification is filed, the United States is substituted as the defendant and you are dismissed from the case personally. The case then proceeds as an FTCA claim against the government. This protection is significant — it means you typically cannot face personal financial liability for actions taken in your official role. The limitation: Westfall substitution does not cover intentional torts (assault, battery, defamation committed in bad faith) or constitutional violations (civil rights claims under Bivens). If sued personally, notify your agency counsel immediately — do not retain personal counsel before the government has had the opportunity to certify scope-of-employment and substitute itself as defendant.

If you're an active-duty military service member injured in service: The Feres doctrine (Feres v. United States, 1950) is the bad news: the Supreme Court has held that the FTCA does not apply to injuries "incident to service" — which courts have interpreted broadly to include medical malpractice at military hospitals, training accidents, and equipment failures during duty. The practical consequence: active-duty personnel generally cannot sue the military for injuries sustained in service, no matter how clearly negligent the conduct was. Congress made a partial fix in the FY2020 NDAA (Stayskal provision): the DoD now has an administrative claims process for active-duty military medical malpractice at DoD treatment facilities, with a maximum compensation of $100,000 and no judicial review. File through your branch's Judge Advocate General (JAG) office. Discharged veterans — those no longer on active duty — are not subject to Feres for VA medical care and CAN file FTCA claims for VA negligence.

If you received negligent care at a VA hospital or clinic: The VA is the respondent in the largest share of FTCA claims filed annually, reflecting the system's scale (9+ million enrolled veterans) and well-documented care quality problems. The SF-95 for VA claims goes to the VA's Office of General Counsel — find your regional counsel's address at va.gov/opa/ogc. VA's administrative claim backlog under § 2675 has been a documented bottleneck: many claimants wait 2-3 years before receiving an actual denial, though you can invoke the "deemed denied" provision (sue after 6 months without a response) to avoid indefinite waiting. The substantive standard for VA malpractice is the tort law of the state where the VA facility is located — this matters because applicable standards of care, contributory negligence rules, and damage calculation methodologies vary by state. Medical expert witnesses are required for any VA malpractice case; engage an attorney with FTCA and VA malpractice experience early, as marshaling expert witnesses takes months. Average settlements for surgical malpractice at VA facilities run $200,000-$600,000; delayed cancer diagnosis cases have generated multi-million dollar results in federal bench trials.

State Variations

• FTCA liability is governed by the tort law of the state where the incident occurred — so the applicable standard of care, damage rules, and defenses vary by state
• Most states have their own tort claims acts waiving state sovereign immunity for state employee negligence, with varying caps and procedures
• State statutes of limitations for analogous torts may differ from the FTCA's 2-year/6-month deadlines

Implementing Regulations

• 28 CFR Part 0 — Organization of the Department of Justice: delegation of authority for Federal Tort Claims Act administrative claims and litigation defense

• 28 CFR Part 801 — FTCA Claims Against the Court Services and Offender Supervision Agency (CSOSA) and Pretrial Services Agency for the District of Columbia (PSA). This Part covers the FTCA administrative claims procedure specifically for these two DC probation/parole supervision agencies (the general DOJ FTCA procedures are at 28 CFR Part 14). Key provisions:

  • § 801.1 — Applicability: covers CSOSA and PSA; general FTCA provisions (28 CFR Part 14) apply to both; Standard Form 95 (Claim for Damage, Injury, or Death) is the preferred filing vehicle and is available from the CSOSA General Counsel's office
  • § 801.2 — Who may file and what must be included: any person claiming property damage or personal injury caused by a CSOSA or PSA employee acting within the scope of employment; the claim must include a "sum certain" — a specific dollar amount demanded — without which the administrative claim is not cognizable
  • § 801.3 — Agency review and routing: CSOSA/PSA has 6 months to consider and act on a filed claim; if a claim is filed with the wrong federal agency, CSOSA/PSA will forward or return it appropriately
  • § 801.4 — Resolution and right to sue: acceptance of a settlement offer bars any further lawsuit on that claim (final and binding); if the claim is denied, the claimant has 6 months to file suit in U.S. District Court; if CSOSA/PSA fails to act within 6 months, that constitutes a constructive denial and the claimant may proceed to court without waiting further

  The 6-month administrative waiting period is a hard threshold under the FTCA — courts lack jurisdiction over a claim that was never filed or filed fewer than 6 months before suit was brought. For injuries caused by CSOSA or PSA supervision activities (e.g., a supervisee on community supervision injures a third party, or a PSA employee causes a car accident in a government vehicle), the SF 95 route through the CSOSA General Counsel is the mandatory first step before any federal lawsuit.

• 32 CFR Part 842 — Air Force Administrative Claims (130 sections — the Air Force's comprehensive administrative claims processing regulations under multiple statutory authorities that parallel and supplement the FTCA; authority: 10 U.S.C. § 8013):

  Part 842 is the Air Force's implementation of the military's multi-track administrative claims system. Unlike the FTCA (which covers negligent acts by federal employees and requires the claimant to first file administratively and then sue in court), military administrative claims under Part 842 are typically resolved administratively without judicial review — reflecting both practical considerations (many arise overseas or in combat-adjacent contexts where court jurisdiction is unavailable) and policy choices to provide faster, if more limited, compensation to claimants. Six substantive claims authorities:

  • Subpart C — Personnel Claims Act (31 U.S.C. §§ 3701, 3721): military members and civilian employees may file for personal property lost, damaged, or destroyed incident to military service — including damage during moves, from quarters fires, and combat-zone losses; maximum payment is $40,000 for active duty (higher for deployments); payments require only showing that the loss was incident to service and not the result of negligent misconduct by the claimant; the Air Force Finance Center processes these claims without requiring negligence by anyone
  • Subpart D — Military Claims Act (10 U.S.C. § 2733): third parties (civilians) injured or whose property is damaged by Air Force personnel or activities (outside combat) may claim compensation; the MCA is the primary non-FTCA remedy for injuries from non-combat military operations, exercises, and incidents that occurred outside the United States (where FTCA foreign-country exception bars recovery); MCA claims require showing Air Force negligence and are capped at $100,000 without higher-authority approval; MCA allows settlement authority to be delegated to installation JA officers for claims up to specified limits
  • Subpart E — Foreign Claims Act (10 U.S.C. § 2734): enables payment to foreign nationals for claims arising from Air Force operations overseas — even in combat conditions where the FTCA does not apply; the Foreign Claims Act is a key tool for maintaining goodwill with host-nation populations; payments are made from DoD appropriations; the claims are investigated by Foreign Claims Commissions appointed at each overseas installation; the political-military importance of FCA claims means that Air Force SJAs overseas receive specific training in FCA processing as part of a broader civil affairs strategy
  • Subpart B — Article 139, UCMJ Claims (10 U.S.C. § 939): a unique mechanism allowing any person to seek compensation specifically from individual military members who willfully damaged the claimant's property or committed assault and battery; when a commander substantiates an Article 139 claim, the government pays the claimant and then deducts the payment from the responsible military member's pay — making Article 139 a direct personal-accountability mechanism that does not exist under the FTCA; maximum per-claim is $5,000 or three months' basic pay
  • Subpart K — National Guard Claims Act (32 U.S.C. § 715): when National Guard units are in federal service, the National Guard Claims Act provides the same claims authorities as the MCA and Personnel Claims Act for property damage and personal injuries arising from Guard activities; Guard claims processing differs depending on whether the Guard member was in Title 10 (federal) or Title 32 (state) status at the time of the incident — a distinction that directly affects which statutory authority applies and whether the state or federal government pays
  • Subpart L — Hospital Recovery Claims (42 U.S.C. §§ 2651–2653): when the Air Force provides medical care at government expense to a member or civilian employee who was injured by a negligent third party, the government has a subrogation right to recover its medical costs from the third party or their insurer; Part 842 Subpart L governs how the Air Force asserts these medical cost recovery claims — typically against automobile insurers, workers' compensation funds, or third-party defendants in civilian personal injury litigation

  The parallel existence of these administrative claims authorities alongside the FTCA reflects the military's unique operational context: combat exclusions, overseas deployments, and service-member injuries "incident to service" (excluded from FTCA under the Feres doctrine) require separate compensation mechanisms. For claimants dealing with Air Force incidents, the appropriate claims authority depends on: (a) whether the claimant is a military member (Personnel Claims) or a civilian (MCA, FTCA, or FCA depending on location); (b) whether the incident was overseas (FCA or MCA) or domestic (FTCA or MCA); and (c) whether the Air Force's act was intentional (Article 139) or negligent (MCA). JAG offices at each Air Force installation and the Air Force Claims Service Center at Wright-Patterson AFB coordinate processing. Recent rulemaking: 81 FR 83688 (2016) — comprehensive Part 842 revision updating processing procedures, payment limits, and delegation of authority.

• 38 CFR Part 14 — VA Legal Services, General Counsel, and Miscellaneous Claims (65 sections): the Veterans Affairs Department's comprehensive framework for legal services and FTCA administrative claims. Structurally, Part 14 establishes the VA Office of General Counsel as the central legal authority for the department, with Regional Counsels at each VA regional office authorized to provide legal advice and handle claims locally. Key provisions:

  • §§ 14.500–14.502 — General Counsel functions: the General Counsel is responsible to the Secretary for all VA legal services, including legal opinions on benefits law, contracts, personnel, and departmental administration; formal legal advice requests from administrations (VHA, VBA, NCA) go through Central Office counsel
  • §§ 14.503–14.507 — Legal opinion procedures: Regional Counsels handle routine legal questions; requests for opinions on domestic relations (guardianship, competency) are channeled to specific offices; General Counsel opinions on veterans' benefits law under statutes administered by the VA are published in the VA General Counsel Precedent Opinions (available at va.gov) — these are binding on all VA employees until changed by the Secretary, the Board of Veterans' Appeals, or court order
  • § 14.514 — Government representation and indemnification: VA employees acting within the scope of employment are represented by the Department of Justice in civil suits (not the VA General Counsel) under the Westfall Act (28 U.S.C. § 2679); VA may indemnify employees personally named in suits arising from scope-of-employment conduct
  • §§ 14.600–14.604 — FTCA administrative claims (VA): tort claimants must file Standard Form 95 with the appropriate VA Regional Counsel (not the VA General Counsel's D.C. office, and not DOJ); the Regional Counsel in the region where the incident occurred has settlement authority; claims involving medical malpractice at VA medical centers go to the Regional Counsel covering that VAMC's geography; the standard FTCA 6-month response period and right to file suit on constructive denial apply

  The VA's FTCA claims volume — driven by the 9+ million enrolled veterans receiving care at VHA facilities — makes Part 14 one of the most operationally significant agency-specific FTCA implementation regulations. Critically, the "sum certain" requirement applies: veterans' attorneys routinely caution that SF-95 claims must include a specific dollar demand (not "to be determined"), because courts have dismissed FTCA claims filed without a sum certain as unexhausted. Filing with the wrong Regional Counsel (e.g., the one nearest the claimant rather than the VAMC where the care occurred) does not necessarily invalidate the claim — Part 14 authorizes forwarding — but it can delay the 6-month response clock.

• 29 CFR Part 15 — Administrative Claims Under the Federal Tort Claims Act and Related Claims Statutes (Department of Labor) (34 sections across two subparts — DOL's FTCA implementing regulation for claims arising from acts or omissions of DOL employees; authority: 28 U.S.C. § 2672; 28 U.S.C. § 2675). DOL employees include OSHA compliance officers conducting inspections, Mine Safety and Health Administration (MSHA) inspectors, wage and hour investigators, and other field personnel — making DOL FTCA claims arise most often in the context of workplace safety inspections and enforcement activities:

  FTCA Claims (Subpart A):

  • § 15.100 — Covered claims: the FTCA waives sovereign immunity for negligent or wrongful acts or omissions of DOL employees acting within the scope of their employment that cause property damage, personal injury, or death; claims arising from discretionary functions (enforcement decisions, inspection prioritization) are excluded under the discretionary function exception even if the decision turned out to be wrong
  • § 15.101 — Who may file: the injured party, or their legal representative; in property damage cases, an insurance company subrogated to the owner's rights may file if the loss is wholly compensated
  • § 15.104 — Where to file: claims must be filed with the DOL organizational unit whose employee is alleged to have caused the harm; OSHA-related claims go to the appropriate OSHA Regional Administrator; MSHA-related claims to the appropriate MSHA district
  • § 15.105 — Required documentation: for personal injury claims — medical records, bills, lost wage calculations, physician statements on permanent disability; for property damage — repair estimates or fair market value appraisals; claimants who omit required documentation will be notified and given opportunity to supplement
  • § 15.106 — Processing: upon receipt of a claim, the relevant organizational unit conducts an investigation, prepares an administrative report, and transmits it to the DOL Counsel for Claims and Compensation with a recommendation to settle, deny, or refer to DOJ
  • § 15.108 — Settlement authority: the Counsel for Claims and Compensation may settle FTCA claims; settlements at or below $2,500 are paid directly; settlements exceeding $2,500 require DOJ approval; the standard 6-month response period applies — claimants may treat failure to act within 6 months as a denial and proceed to federal court
  • § 15.109 — Denial: denial must be in writing and advise the claimant of the right to file suit in federal district court within 6 months of the mailing of the denial

  Military Personnel Claims (Subpart B — § 15.200 series): Part 15 Subpart B covers claims under the Military Personnel and Civilian Employees' Claims Act (MPCECA, 31 U.S.C. § 3721) — a related but distinct statute covering property damage or loss incident to service for DOL civilian employees (equipment, vehicles, clothing lost or damaged in the course of employment, not as a result of negligence by another government employee). MPCECA claims cover situations the FTCA does not — such as an MSHA inspector's vehicle damaged by a mine explosion during an inspection.

Pending Legislation

• S 3182 — Block FTCA tort suits against the President, including for past acts. Status: Introduced.
• HR 5988 — FTCA exception shielding President and close relatives during elected term. Status: Introduced.
• HR 6831 — Require Secret Service-protected persons to repay presidential business travel, bar certain FTCA claims. Status: Introduced.
• S 4124 — Stop DOJ funds from approving tort payments that personally benefit the President. Status: Introduced.

Recent Developments

• Feres doctrine narrowing stalled in Congress despite bipartisan pressure: The Richard Stayskal Military Medical Accountability Act — which would create a narrow FTCA exception for medical malpractice at military treatment facilities — has been reintroduced in multiple Congresses after Stayskal, an Army Green Beret diagnosed with lung cancer he alleges VA providers missed, became the face of reform. While Congress added a limited DOD medical claims process in the FY2020 NDAA, the Feres doctrine itself remains intact; plaintiffs injured by military medical negligence still cannot sue directly under FTCA and must rely on the DOD administrative process, which caps payments and lacks judicial review.
• DOGE-era federal agency staffing reductions creating new negligence exposure: The Trump DOGE initiative's mass reduction-in-force actions at FAA, OSHA, EPA, and other safety-oversight agencies are anticipated to produce future FTCA litigation. The discretionary function exception (28 U.S.C. § 2680(a)) protects policy-level decisions to reduce staffing, but operational failures arising from understaffed inspections or missed regulatory deadlines — where ministerial duties existed — may fall outside the exception. The East Palestine train derailment litigation and air traffic control staffing incidents have already produced early theories of government liability that will test the discretionary function boundary.
• Supreme Court FTCA cases tightening procedural requirements: Brownback v. King (2021) held that a judgment against a plaintiff on the merits under the FTCA bars any subsequent Bivens claims on the same facts — limiting the judicial options for federal civil rights plaintiffs. Cases in 2023-2024 have continued to narrow the implied waiver of sovereign immunity; courts have consistently held that the FTCA's specific exceptions (assault, battery, misrepresentation, interference with contract) are read broadly, leaving many categories of government misconduct outside the FTCA's reach.
• VA medical malpractice FTCA caseload remains the largest single category: The Department of Veterans Affairs is the respondent in the majority of all FTCA claims filed annually — reflecting the scale of the VA's healthcare system (9+ million enrolled veterans) and the consequences of understaffing and care delays. Average VA FTCA settlement amounts for surgical malpractice run $200,000–$600,000; cases involving delayed cancer diagnosis have generated multi-million dollar settlements. The VA's administrative claims backlog under 28 U.S.C. § 2675 — the mandatory pre-suit administrative exhaustion requirement — has been a persistent bottleneck, with claimants sometimes waiting 2–3 years for an administrative determination before they can file suit.