Westfall Act — Federal Employee Tort Immunity
When a federal employee causes harm while doing their job — a postal worker rear-ends your car, an FBI agent destroys your property during a search, a VA doctor misses a diagnosis — who do you sue? The Westfall Act answers that question: you sue the United States, not the individual employee. The law substitutes the federal government as the defendant in tort suits against federal workers, converting what would have been a personal lawsuit into a Federal Tort Claims Act claim against the government. For federal employees, this provides significant protection from personal liability. For injured plaintiffs, it channels claims through the FTCA's procedures and limitations — including its exceptions, which can bar recovery entirely in certain situations.
Current Law (2026)
| Parameter | Value |
|---|---|
| Statute | Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Westfall Act") |
| Codified at | 28 U.S.C. § 2679 |
| Trigger | DOJ certification that federal employee was acting within scope of employment |
| Effect of certification | United States is substituted as defendant; the individual employee is dismissed |
| Plaintiff's recourse if certified | Must proceed under FTCA against the United States |
| Plaintiff's challenge | May contest the scope-of-employment certification in the district court |
| Constitutional violations | NOT covered — Bivens claims against individual officers proceed separately |
| Intentional torts | Covered for most purposes (unlike the FTCA itself, which has limited intentional tort coverage) |
| Who is covered | All federal employees (including military personnel in some contexts) |
| Who is NOT covered | Independent contractors; conduct outside the scope of employment |
Legal Authority
- 28 U.S.C. § 2679(b)(1) — Exclusivity of remedy (the FTCA remedy against the United States is exclusive; a civil action or proceeding against a federal employee for a tort committed while acting within the scope of employment is preempted; the United States is substituted as defendant)
- 28 U.S.C. § 2679(b)(2) — Exception for constitutional claims (the exclusivity provision does not apply to civil actions against employees for violations of the Constitution — preserving Bivens claims for constitutional violations by federal officers)
- 28 U.S.C. § 2679(c) — Petition for removal (upon certification by the Attorney General — or a designee — that the defendant employee was acting within the scope of employment, any civil action in state or federal court is removed to federal court and the United States is substituted as defendant)
- 28 U.S.C. § 2679(d)(1) — Scope of certification (upon certification, the action proceeds against the United States under the FTCA; if a court later determines the employee was not acting within the scope of employment, the action is dismissed as to the United States and the plaintiff may reinstate claims against the individual)
- 28 U.S.C. § 2679(d)(3) — Judicial review of certification (the certification is not conclusive; a plaintiff may challenge it, and the district court determines the scope-of-employment question de novo if the plaintiff presents evidence creating a genuine dispute)
How It Works
When a federal employee is sued in state or federal court for a tort, the Department of Justice reviews the complaint and certifies whether the employee was acting within the scope of their federal employment (28 U.S.C. § 2679(c)). If DOJ certifies scope, the United States automatically replaces the employee as defendant, the case is removed to federal district court if it was filed in state court, and the plaintiff's only avenue becomes an FTCA claim against the government — subject to all of FTCA's procedures and limitations. Certification is not final: a plaintiff who believes the employee was acting outside scope can challenge it (§ 2679(d)(3)), and the district court applies a de novo standard using the tort law of the state where the incident occurred. If the court rejects scope, the case against the government is dismissed and the plaintiff may proceed against the employee personally — though by then time has passed and procedural complications may have accrued.
The Act explicitly does not cover constitutional violations (§ 2679(b)(2)): if a federal agent violates your Fourth or Fifth Amendment rights, you can still sue the individual officer under the Bivens doctrine — though the Supreme Court has aggressively restricted Bivens since Egbert v. Boule (2022), leaving the remedy largely theoretical in new contexts. Coverage for ordinary torts is broader than many plaintiffs expect: unlike the FTCA itself (which excludes most intentional torts from liability against the government), the Westfall Act immunizes employees even for intentional torts — meaning a plaintiff may have no remedy if both the FTCA exception bars recovery against the government and the employee is shielded from personal suit. Independent contractors are not covered; only employees qualify, and the contractor-versus-employee classification is heavily litigated in cases involving government-adjacent workers. Congress enacted the Westfall Act in direct response to Westfall v. Erwin (1987), where the Supreme Court had limited immunity to employees exercising "discretionary functions" — a standard Congress found too uncertain — replacing it with blanket scope-of-employment protection.
Key Numbers / Thresholds
- No dollar threshold — Westfall Act applies regardless of the amount in controversy
- DOJ certification must occur promptly after the employee is served with process
- Plaintiff has the burden of presenting evidence to overcome DOJ's scope certification
- Statute of limitations: FTCA's 2-year administrative claim deadline applies once the case is converted; if the plaintiff filed against the employee within that window, the government may be substituted without loss of the claim
- Independent contractors: NOT protected — the distinction between employee and contractor status is frequently litigated
How It Affects You
<!-- pria:personalize type="eligibility" -->If you were harmed by a federal employee: You cannot simply sue the employee personally — the DOJ will certify scope of employment and substitute the United States as defendant, converting your claim to an FTCA case. Before filing suit, you must file an administrative claim with the relevant federal agency (Standard Form 95) and wait for the agency to deny it or let 6 months pass. Only then can you sue in federal district court. If the employee violated your constitutional rights (unreasonable search, due process violation), a Bivens claim against the individual officer remains theoretically available — though the Supreme Court has increasingly restricted Bivens. See Bivens Doctrine for current limitations.
If you were harmed by a federal contractor (not an employee): The Westfall Act does not extend to independent contractors. If a government contractor's worker caused your injury, you may be able to sue the contractor directly. The contractor may raise government contractor immunity defenses (Boyle v. United Technologies, 1988) — a separate doctrine covering certain design defect claims — but cannot invoke the Westfall Act. Distinguishing employees from contractors in the federal context turns on the degree of federal control over the work, which courts analyze fact-intensively.
If you're a federal employee who's been sued: The Westfall Act's substitution mechanism is your protection. Notify your agency's general counsel immediately upon being served — do not try to respond yourself. The DOJ will review the complaint and, if you were acting within scope, will certify scope of employment and substitute the United States. Your personal assets are shielded for on-the-job conduct. Acts clearly outside your official duties, however, may not qualify — personal use of government vehicles for non-official travel, for instance, has generated scope-of-employment disputes.
<!-- /pria:personalize -->Pending Legislation
- Bivens codification proposals: Academic and civil liberties advocates have called for legislation to codify and restore a statutory right of action against federal officers who violate constitutional rights — filling the gap left by the Supreme Court's progressive restriction of the implied Bivens remedy. No bill has advanced in the 119th Congress, but proposals circulate after every significant Supreme Court decision narrowing Bivens.
- FTCA reform: Proposals to narrow or expand specific FTCA exceptions — particularly the discretionary function exception and the intentional tort exception — are regularly introduced to address accountability gaps for immigration enforcement actions, law enforcement incidents, and federal medical malpractice. Status: Introduced in various forms.
- HR 1811 (Rep. Stansbury, D-NM) — Judicial Ethics Enforcement Act of 2025: creates an independent Office of Inspector General for the federal judiciary, which would have authority to investigate certain allegations about federal employee conduct — tangentially affecting the federal employment and immunity framework. Status: Introduced.
Recent Developments
- Bivens continues to shrink, widening the accountability gap: Egbert v. Boule (2022) marked another significant contraction — the Supreme Court declined to extend Bivens to First Amendment retaliation claims by a Border Patrol agent, holding that any "rational reason" to think Congress might address the problem was enough to preclude an implied right of action. Post-Egbert, virtually no new Bivens contexts have been recognized. The combination of the Westfall Act (personal immunity for on-the-job conduct) and a shrinking Bivens (no remedy for constitutional violations in new contexts) has created what scholars call an "accountability gap": individuals harmed by federal officers acting unconstitutionally may face a complete bar to recovery. Legislation to codify a statutory Bivens-equivalent has been proposed but not enacted.
- Immigration enforcement generated significant Westfall/FTCA litigation (2025–2026): The Trump administration's intensified immigration enforcement operations — including workplace raids, detention conditions, and deportation of individuals to third countries — generated a wave of FTCA administrative claims and litigation. Central issues: whether ICE and Border Patrol agents are within scope when they use force beyond policy guidelines; whether the discretionary function exception protects enforcement policy choices; and whether FTCA's misrepresentation exception bars claims based on misrepresentations during enforcement. Circuits have split on some of these questions.
- DOJ certification practices under scrutiny: Critics have raised concerns about the timing and standards for DOJ scope-of-employment certification in high-profile cases — particularly cases involving law enforcement use of force. The certification is supposed to be a factual determination (was the employee acting within scope?), but in politically sensitive cases the line between legal analysis and institutional protection can appear blurred. Several courts have permitted discovery into the certification process where plaintiffs presented plausible evidence that the employee was acting outside scope.
- Contractor vs. employee classification remains a significant battleground: The proliferation of government contractors — particularly in information technology, logistics, immigration detention management, and security services — has expanded the population of government-adjacent workers who lack Westfall Act protection. Cases involving private prison contractor employees, immigration detention facility staff, and IT contractors at security agencies have generated extensive litigation over whether the relevant individual was an employee or independent contractor for Westfall Act purposes.