Before you can sue the federal government for a tort, 28 U.S.C. 2675 requires you to satisfy the FTCA administrative claim requirement: present a written claim to the responsible federal agency, state a specific dollar amount, and then either receive a written denial or wait six months without a response. Skip this step, or complete it incorrectly, and any lawsuit you file will be dismissed no matter how strong the underlying facts are.1Office of the Law Revision Counsel. 28 USC 2675 – Disposition by Federal Agency as Prerequisite; Evidence
What the Administrative Claim Must Contain
The Federal Tort Claims Act waives sovereign immunity only for claimants who first present a written claim to the federal agency whose employee caused the harm. The government’s preferred format is Standard Form 95 (SF-95), but any written notification that includes the required elements will do.2Department of Justice. Civil Division Documents and Forms
Two elements decide whether the claim counts. The first is a specific dollar amount — what the statute calls a “sum certain.” A claim that describes what happened but asks for “appropriate compensation,” or leaves the damages line blank, is not a valid claim and does not satisfy the filing requirement.3General Services Administration. Standard Form 95 (SF-95) Claim for Damage, Injury, or Death The second is enough factual detail — date, location, circumstances, and supporting documentation like medical records or repair estimates — for the agency to actually investigate. Courts have dismissed lawsuits where the administrative claim described one theory of negligence but the later lawsuit pursued a different one, on the ground that the agency never had a fair chance to evaluate the real dispute.
The sum certain does more than trigger the agency’s review. Under 28 U.S.C. 2675(b), your eventual lawsuit cannot seek more than the amount you claimed administratively, with narrow exceptions for newly discovered evidence or intervening facts that were not reasonably discoverable when you filed.1Office of the Law Revision Counsel. 28 USC 2675 – Disposition by Federal Agency as Prerequisite; Evidence Courts read those exceptions narrowly. If your injuries are still developing when you file, you can amend the claim to update the amount while it remains pending with the agency, but that opportunity closes when the agency issues its final denial.
The Two-Year Deadline and When It Starts
Your administrative claim must reach the agency within two years of when the claim accrues.4Office of the Law Revision Counsel. 28 USC 2401 – Time for Commencing Action Against United States Miss that window and the claim is permanently barred. Most circuits do not allow equitable tolling.
Accrual is not always the date of the injury. In United States v. Kubrick, 444 U.S. 111 (1979), the Supreme Court held that a claim accrues when you know both that you have been injured and what caused the injury. The clock does not wait until you learn that the cause was negligent or otherwise wrongful. The plaintiff in Kubrick discovered years after surgery that the treatment had caused his hearing loss; the Court held the two-year period began when he learned the treatment was responsible, not later when a doctor told him it had fallen below the standard of care. Practically, if you suspect a federal employee’s conduct harmed you, treat the clock as already running.
Filing With the Correct Agency
The claim goes to the agency whose employee was involved. A collision with a Postal Service vehicle is straightforward. Incidents involving contractors on a military base, or overlapping jurisdiction between agencies, are less obvious.
When more than one agency could be responsible, federal regulations require the agencies to coordinate and designate a single lead agency to investigate and decide the claim.5eCFR. 28 CFR 14.2 – Administrative Claim; When Presented If the agencies cannot agree, the Department of Justice assigns one, and the designated agency tells you where to direct future correspondence. Some agencies will transfer a misfiled claim to the correct one, but you cannot count on it, and a transfer does not extend the two-year deadline.
One trap: if you file the same claim with multiple agencies without flagging the overlap, whichever agency acts first triggers the six-month lawsuit deadline. Filing again with a second agency after the first denial does not restart that clock unless the second agency explicitly treats the new filing as a reconsideration request.6eCFR. 28 CFR Part 14 – Administrative Claims Under Federal Tort Claims Act
What Happens After You File
Once the agency receives your claim, it has six months to investigate and respond. During that period it may approve the claim and offer settlement, deny it outright, or ask you for more information. Straightforward matters can settle quickly; medical malpractice or multi-party incidents can consume the full six months and often more.
If six months pass with no final response, you may treat the silence as a denial and file suit.1Office of the Law Revision Counsel. 28 USC 2675 – Disposition by Federal Agency as Prerequisite; Evidence This is optional. You can also keep waiting if negotiations look productive. Once you elect to treat the inaction as denial and sue, the six-month lawsuit clock is running.
A formal denial must come in writing, sent by certified or registered mail, and must inform you of your right to sue within six months.6eCFR. 28 CFR Part 14 – Administrative Claims Under Federal Tort Claims Act Before that window closes, you can submit a written request for reconsideration. That resets the clock: the agency gets another six months to reconsider, and your right to sue does not begin until that reconsideration period ends. Reconsideration is worth considering when you have new evidence or believe something significant was overlooked.
Individual agencies have authority to resolve claims up to certain dollar thresholds on their own. Claims exceeding $25,000 generally require written approval from the Attorney General or a designee, and any claim raising a novel legal question, or one that could set a precedent, must be cleared with the Department of Justice regardless of amount.
Moving From Claim to Lawsuit
If the agency denies your claim or six months of silence pass, you have exactly six months from the date the denial was mailed to file in federal court.4Office of the Law Revision Counsel. 28 USC 2401 – Time for Commencing Action Against United States This deadline runs from the date on the certified mail, not the date you received or read it. It is one of the most commonly missed dates in FTCA practice.
Filing before the administrative process is complete is equally fatal. In McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court dismissed a lawsuit where the plaintiff had sued before finishing the administrative claim process, even though he later completed it while the case was pending.7Legal Information Institute. McNeil v. United States The exhaustion rule is absolute.
The lawsuit must name the United States as the sole defendant. You cannot sue the individual federal employee or the agency by name. Under the Westfall Act, the FTCA is the exclusive remedy for torts committed by federal employees acting within the scope of their duties, and the United States is substituted as the defendant.8Office of the Law Revision Counsel. 28 USC 2679 – Exclusiveness of Remedy Naming the wrong defendant is a jurisdictional defect that ends the case.
Claims the FTCA Will Not Cover
Even a perfectly filed administrative claim goes nowhere if the underlying facts fall within one of the exceptions in 28 U.S.C. 2680.9Office of the Law Revision Counsel. 28 USC 2680 – Exceptions It is worth knowing the main ones before investing time in a claim.
The broadest is the discretionary function exception, which shields the government from liability for actions involving policy judgment. In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court set the two-step test: whether the challenged action actually involved judgment or choice, and whether that judgment was the kind grounded in policy considerations the exception protects. If a statute or regulation dictated a specific course of action, the exception does not apply. The Court ruled against the government in Berkovitz itself, finding that officials who licensed a defective polio vaccine had violated mandatory regulatory requirements rather than exercising protected discretion.
The FTCA also generally excludes intentional torts, but Congress created a proviso for federal law enforcement officers authorized to make arrests, execute searches, or seize evidence. Claims for assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution by such officers can proceed.9Office of the Law Revision Counsel. 28 USC 2680 – Exceptions Libel, slander, misrepresentation, deceit, and interference with contract remain barred even when a law enforcement officer is involved.
Combatant activities of the military during wartime are barred entirely, and courts have read “combatant activities” broadly enough to reach training exercises and national security operations. Separately, the Feres doctrine bars active-duty service members from suing under the FTCA for injuries arising out of or in the course of military service, including medical malpractice at military hospitals.10Congressional Research Service. The Feres Doctrine: Congress, the Courts, and Military Personnel Congress has created a separate Department of Defense administrative process for military medical malpractice, and the Camp Lejeune Justice Act of 2022 opened a specific right to sue for water contamination at that base, but for most service-related injuries Feres still blocks FTCA claims.
Claims arising in a foreign country are barred even when a federal employee’s negligence is clear. Lost, misdirected, or damaged mail is also excluded, though the Postal Service’s own claims process may cover insured or registered mail.
One more boundary worth flagging: the FTCA covers federal employees acting within the scope of their jobs. If an independent contractor caused your injury, the FTCA does not apply, and you would need to pursue the contractor directly. This comes up often in military and healthcare settings where contract workers are common.
Mistakes That Void an Otherwise Valid Claim
Most FTCA claims that fail do so on procedure, not merits. The exhaustion requirement, the two-year and six-month deadlines, the sum certain rule, and the proper-defendant rule are all jurisdictional. A court cannot overlook them even when the underlying claim is obviously strong. The recurring errors:
- Filing suit before the agency has denied the claim or before six months have passed.
- Submitting an administrative claim without a specific dollar amount, no matter how detailed the narrative.
- Letting the six-month post-denial window lapse, measured from the mailing date on the certified letter, not the date of receipt.
- Seeking more in court than was claimed on the SF-95, without newly discovered evidence or intervening facts to justify the increase.
- Naming the agency or the individual employee as defendant instead of the United States.
Handled in order, the administrative claim requirement is straightforward: identify the right agency, file a written claim with a sum certain and enough factual detail within two years of accrual, wait for a denial or the six-month mark, and file suit within six months after that. Each step is a jurisdictional gate, and the entire case runs through all of them.