28 USC 1346: Little Tucker Act and FTCA Claims

Under 28 U.S.C. § 1346, you can sue the United States in a regular federal district court in two situations: money claims up to $10,000 (contract disputes, tax refunds, and certain claims founded on the Constitution or a federal statute) and claims for personal injury, property damage, or wrongful death caused by a federal employee’s negligence.¹ The statute does not create new rights. It waives the government’s sovereign immunity so you can bring the case at all. Each side of § 1346 has its own caps, forums, and procedural traps.

Money Claims: The Little Tucker Act Side

Subsection (a)(2), often called the Little Tucker Act, gives district courts jurisdiction over monetary claims against the United States founded on the Constitution, a federal statute, a federal regulation, or a contract with the government. The hard limit is $10,000.¹ Larger claims must go to the U.S. Court of Federal Claims under the Tucker Act.²

The cap matters. A contractor owed $15,000 by a federal agency cannot use § 1346 to sue in the nearest district court. That case belongs in the Court of Federal Claims. Slicing a larger claim into sub-$10,000 pieces to keep it local is not permitted. For smaller disputes, though, the Little Tucker Act keeps the case near you.

Tax refund suits sit in a separate lane under subsection (a)(1). If you believe the IRS wrongly assessed or collected a tax, you can sue for a refund in district court after you have paid the full tax and filed a timely administrative refund claim with the IRS.¹ Refund suits are not capped at $10,000, and they are one of the few types of cases against the United States where you can request a jury trial.³

Tort Claims: The FTCA Side

Subsection (b) is the jurisdictional foundation for the Federal Tort Claims Act. It gives district courts exclusive jurisdiction over claims for personal injury, property loss, or death caused by the negligent or wrongful act of a federal employee acting within the scope of official duties.¹ The government’s liability tracks that of a private person in the same situation: if a private individual doing the same thing would owe you damages under the law of the state where the incident happened, the government does too.

Scope of employment decides many close cases. A postal carrier who runs a red light during a delivery route is acting within scope. That same carrier running personal errands on a day off is not, and the government has no liability for the accident.

Because the FTCA borrows the substantive law of the state where the incident happened, the elements you must prove come from state tort law, not federal common law. Medical malpractice at a VA hospital in Texas will be judged by Texas negligence standards. State damage caps and expert witness requirements can also affect the federal case.

No Jury, No Punitive Damages

Two features surprise people. FTCA cases are bench trials; a judge decides the facts.³ And you cannot recover punitive damages or prejudgment interest against the United States.⁴ Recovery is limited to actual compensatory damages: medical bills, lost income, and pain and suffering as allowed by state law. If a state’s wrongful death statute only provides damages that are “punitive in nature,” the FTCA substitutes actual compensatory damages measured by the pecuniary harm to survivors.

Employees, Not Contractors

The FTCA reaches acts by federal officers and employees, military members, and people acting on behalf of a federal agency in an official capacity.⁵ It excludes contractors. If a private company hired by the government causes your injury, the government generally is not liable under the FTCA, and your claim runs against the contractor directly. Narrow exceptions exist, such as when the government retains day-to-day control over how the work is done, but the default holds.

When You Try to Sue the Employee Personally

If you sue a federal employee personally for something they did on the job, the Westfall Act reroutes the case. Once the Attorney General certifies that the employee was acting within the scope of duties, the United States is substituted as the defendant and the case proceeds under the FTCA. A state-court filing gets removed to federal court.⁶ The FTCA is the exclusive remedy for negligence. The main ways around it are constitutional claims (a Bivens action) or a federal statute that independently authorizes suit against individuals.

File the Administrative Claim First

You cannot walk into court with an FTCA claim. Before any lawsuit, you must submit a written claim to the federal agency whose employee caused the injury.⁷ This is jurisdictional, not a formality. A court will dismiss a lawsuit filed without a proper administrative claim, no matter how strong the underlying facts.

The standard vehicle is Standard Form 95 (SF-95). It requires the incident details, the federal employee’s act or omission, the nature of your injuries, and a specific dollar demand. A vague request for “damages” will not do; the form requires a “sum certain.”⁸ The number matters, because any later lawsuit generally cannot seek more than what appears on the SF-95, unless you discover new evidence that was not reasonably available when you filed.⁷

Back the sum certain up with documentation. For personal injuries, that means a physician’s report describing the nature and extent of the injury, the treatment received, any permanent disability, and itemized medical bills. For repairable property damage, two written repair estimates from independent sources. For property that was destroyed or cannot be repaired, statements of original cost, purchase date, and fair market value before and after the incident.⁸

The Deadlines

Two years from the date the claim accrues to submit the SF-95. Miss it and the claim is barred.⁹ Accrual usually starts on the date of the incident. For injuries that are not immediately apparent, such as medical malpractice, courts apply a discovery rule. Under United States v. Kubrick, the clock begins when you know (or reasonably should know) of the injury and its probable cause, not when you learn you might have a legal claim.

After you file the SF-95, you must wait at least six months for the agency to respond before filing suit. If the agency denies the claim in writing before six months are up, you can file immediately. If the agency does nothing for six months, you can treat the silence as a denial and go to court.⁷ Once you receive a written denial, you have six months from the mailing date of the denial notice to file suit. Let that window close and access to court is gone.⁹

Claims Section 1346 Will Not Reach

Even a well-pleaded, timely case can hit an exception in 28 U.S.C. § 2680 that keeps the government’s immunity in place. These are jurisdictional dead ends.¹⁰

Discretionary Function

The most litigated exception shields the government from liability for acts based on discretionary judgment by an agency or employee, even a poorly exercised one.¹⁰ Under Berkovitz v. United States, the challenged action must involve genuine judgment or choice (not something dictated by a specific statute, regulation, or mandatory policy), and that choice must be grounded in policy considerations like economics, public safety, or resource allocation.¹¹ A federal agency’s decision about how to allocate safety inspection resources is protected. A building inspector who skips a mandatory checklist step is not exercising policy discretion, and that operational negligence can support a claim.

Intentional Torts (With a Law Enforcement Carve-Out)

The FTCA generally does not waive immunity for intentional wrongdoing. Claims for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contract rights are excluded.¹⁰

There is a carve-out for federal law enforcement. If the intentional tort was committed by an investigative or law enforcement officer, meaning someone authorized by federal law to execute searches, seize evidence, or make arrests, the government can be sued for assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.¹⁰ Libel, slander, misrepresentation, and deceit remain excluded even for law enforcement.

Military Service

The statute excludes claims from military combat activities during wartime.¹⁰ The Feres doctrine, created by the Supreme Court in 1950, goes further and bars active-duty service members from suing for any injury “incident to service,” including things unrelated to combat like a slip-and-fall on a military base.

For decades, Feres blocked military medical malpractice claims entirely. The National Defense Authorization Act for Fiscal Year 2020 created a limited administrative claims process letting service members (or their representatives) seek compensation for personal injury or death caused by medical malpractice at covered military medical treatment facilities.¹² These claims go administratively to the Department of Defense, not through the FTCA court process, and can only be paid if no other legal provision covers them. Feres still bars most other service-related injury claims.

Other Excluded Categories

Claims arising from the assessment or collection of taxes or customs duties cannot proceed as tort claims. If the IRS wrongfully seizes property, the remedy is a tax refund suit under subsection (a)(1) or a Tax Court proceeding, not an FTCA action. Claims arising in a foreign country are also excluded, along with claims tied to postal losses, quarantine enforcement, and the fiscal operations of the Treasury.¹⁰

Attorney Fees and Getting Paid

Federal law caps what an attorney can charge in FTCA cases. A settlement reached during the administrative process, before any lawsuit, is capped at 20% of the recovery. A litigated judgment or court-approved settlement is capped at 25%.¹³ Charging more carries criminal penalties. These caps run below the typical one-third contingency fee in private personal injury cases, which can make it harder to find counsel for a complex FTCA case with modest damages.

On the non-tort side, the Equal Access to Justice Act may let a winning party recover fees from the government when the government’s position was not “substantially justified.” Individuals qualify with a net worth under $2 million; businesses qualify with a net worth under $7 million and no more than 500 employees. The statutory base rate is $125 per hour, adjusted upward for inflation by the courts.¹⁴ EAJA does not apply to tort cases.

Collection is straightforward once you have a final judgment. The Treasury Department’s Bureau of the Fiscal Service pays qualifying judgments from the Judgment Fund, drawn on when no other source of funds is legally available.¹⁵ Post-judgment interest accrues from the date judgment is entered, at the weekly average one-year constant-maturity Treasury yield for the calendar week before the judgment.¹⁶ Because the FTCA prohibits prejudgment interest, the clock starts only when the judge issues the final judgment, not when the injury occurred or the suit was filed.⁴

1
Office of the Law Revision Counsel. 28 U.S.C. 1346 – United States as Defendant
2
Office of the Law Revision Counsel. 28 U.S.C. 1491 – Claims Against United States Generally
3
Office of the Law Revision Counsel. 28 U.S.C. 2402 – Jury Trial in Actions Against United States
4
Office of the Law Revision Counsel. 28 U.S.C. 2674 – Liability of United States
5
Office of the Law Revision Counsel. 28 U.S.C. 2671 – Definitions
6
Office of the Law Revision Counsel. 28 U.S.C. 2679 – Exclusiveness of Remedy
7
Office of the Law Revision Counsel. 28 U.S.C. 2675 – Disposition by Federal Agency as Prerequisite
8
General Services Administration. Claim for Damage, Injury, or Death – Instructions
9
Office of the Law Revision Counsel. 28 U.S.C. 2401 – Time for Commencing Action Against United States
10
Office of the Law Revision Counsel. 28 U.S.C. 2680 – Exceptions
11
Library of Congress. Berkovitz v. United States, 486 U.S. 531 (1988)
12
Federal Register. Medical Malpractice Claims by Members of the Uniformed Services
13
Office of the Law Revision Counsel. 28 U.S.C. 2678 – Attorney Fees; Penalty
14
Office of the Law Revision Counsel. 28 U.S.C. 2412 – Costs and Fees
15
eCFR. 31 CFR Part 256 – Obtaining Payments from the Judgment Fund and Under Private Relief Bills
16
Office of the Law Revision Counsel. 28 U.S.C. 1961 – Interest