Can You Sue DHS for Negligence Under the FTCA?

You can sue DHS for negligence, but only under the Federal Tort Claims Act, and only after you file an administrative claim with the right agency and wait for it to be resolved. The FTCA is a limited waiver of sovereign immunity that lets you seek money damages when a federal employee’s carelessness, committed within the scope of the job, causes injury, property damage, or death.¹ The path is narrow. Strict deadlines can end your case before it starts, several statutory exceptions block entire categories of claims, and the government keeps procedural advantages a private defendant never has.

One thing to understand up front: the FTCA does not create a federal negligence standard. Your claim is judged under the tort law of the state where the incident happened. Damage caused by a TSA officer at O’Hare is measured against Illinois law; an injury caused by a Border Patrol agent in Nogales is measured against Arizona law.¹ The elements you must prove and the defenses available shift with location.

Identify the Right DHS Component

DHS is not a single agency. It contains Customs and Border Protection, Immigration and Customs Enforcement, the Transportation Security Administration, the U.S. Coast Guard, the U.S. Secret Service, U.S. Citizenship and Immigration Services, and the Federal Emergency Management Agency, among others.² Your administrative claim must go to the component whose employee caused the harm.

Sub-agencies run their own claims offices. TSA tort claims, for example, go to the TSA Claims, Outreach, and Debt Branch in Springfield, Virginia, which also accepts submissions by fax or email.³ Sending a claim to the wrong office does not automatically preserve your deadline, and mail to federal facilities can take up to three weeks to arrive because of screening. Do not wait to sort this out.

File the Administrative Claim First

You cannot walk into federal court until you have exhausted the administrative process. Courts dismiss cases outright when claimants skip this step.⁴ The process begins with a written claim, almost always submitted on Standard Form 95 (SF-95). The form is not strictly required by statute, but it is the format agencies expect and the easiest way to ensure your submission is treated as valid.⁵

Five elements make the claim sufficient:

A sum certain. You must state a specific dollar amount. “To be determined” or “in excess of” language invalidates the claim, and the number you write also caps what you can later recover in court.⁶
The date the incident occurred.
The location where it occurred.
A detailed statement of facts, with names, places, and events.
Your signature.

Attach evidence. Personal injury claims should include a physician’s report describing the nature and extent of the injury, the treatment, any permanent disability, and itemized medical bills. Property damage claims should include at least two repair estimates from disinterested sources or receipts if repairs have already been paid.⁶

Agencies can settle claims on their own authority up to $25,000. Anything higher requires prior written approval from the Attorney General or a designee.⁷

Two Deadlines That Can End Your Case

Two clocks run, and missing either one is fatal. The administrative claim must reach the correct agency within two years of the date the claim accrued. If the agency denies your claim, you then have six months from the date the denial notice is mailed to file suit in federal court.⁸ The statute uses the phrase “forever barred,” and courts enforce it literally.

If the agency sits on your claim without deciding it for six months, you can treat that silence as a denial and go to court.⁴ You are not required to wait longer than that.

The Discretionary Function Exception

This is where most claims against DHS fail. The FTCA bars any lawsuit based on a federal employee’s exercise of a “discretionary function” — decisions that involve policy judgment rather than the following of a specific rule.⁹ Courts apply a two-step test. First, did the employee’s action involve judgment or choice? If a statute, regulation, or agency policy dictates a specific course of action, there is no discretion and the exception does not apply. Second, if judgment was involved, was it the kind grounded in social, economic, or political policy? That is what Congress meant to protect.¹⁰

In practice, this exception shields a lot of DHS activity. How CBP allocates agents along the border, how ICE prioritizes enforcement, how FEMA distributes disaster relief — courts treat these as policy calls. The exception tends not to apply when an employee fails to follow a mandatory procedure: a required luggage screening protocol, a required medical check on a detained person, a scheduled maintenance step on a government vehicle. The difference between a policy choice and a failure to follow existing rules is the battleground in most DHS negligence cases.

Other Exceptions That Block Claims

The FTCA carves out several additional categories of claims:

Intentional torts. The FTCA generally does not cover assault, false imprisonment, false arrest, or similar intentional misconduct. There is a significant carve-out for law enforcement officers, though. If an investigative or law enforcement officer — someone empowered to execute searches, seize evidence, or make arrests — commits assault, battery, false arrest, false imprisonment, abuse of process, or malicious prosecution on the job, that claim can proceed under the FTCA. CBP agents, ICE officers, and Secret Service agents all qualify.⁹
Foreign country claims. Any claim arising in a foreign country is excluded outright. Because DHS operates at international borders and occasionally overseas, this comes up often. A CBP action taken on the Mexican side of the border is outside the FTCA.⁹
Misrepresentation and deceit. Claims built on a DHS employee giving you false information — bad guidance on an immigration application, for instance — are typically barred by the misrepresentation exception.

Suing the Officer Personally: The Bivens Problem

When the FTCA does not fit, plaintiffs sometimes look to sue the individual officer under Bivens, a judge-made doctrine that allows damages against a federal officer for constitutional violations committed under color of federal law. Against DHS personnel, this route has narrowed almost to nothing.

The Supreme Court has recognized Bivens remedies in only three settings: unreasonable search and seizure under the Fourth Amendment, sex discrimination under the Fifth Amendment, and cruel and unusual punishment under the Eighth Amendment. Recent attempts to extend Bivens have failed. In Hernandez v. Mesa (2020), the Court refused to allow a Bivens claim against a CBP agent who fatally shot a teenager across the U.S.-Mexico border, reasoning that cross-border incidents implicate foreign policy and national security.¹¹ In Egbert v. Boule (2022), the Court went further, holding that Bivens does not extend to excessive-force or retaliation claims against Border Patrol agents even for incidents on U.S. soil. The Court stated plainly that “a Bivens cause of action may not lie where national security is at issue.”¹²

If your claim involves CBP, ICE, or any DHS component tied to national security or immigration enforcement, a Bivens suit is almost certainly unavailable. The FTCA remains your primary path.

What You Can Recover, and What You Cannot

A successful FTCA claim can recover compensatory damages: medical expenses, lost wages, property damage, and pain and suffering, subject to whatever caps the applicable state law imposes. Some states cap non-economic damages, and those caps apply here. Punitive damages are prohibited outright by the statute.¹³

There is no jury. FTCA cases are bench trials decided by a federal judge.¹⁴ For sympathetic injuries — a child harmed in detention, for example — losing a jury audience changes the strategic picture.

The FTCA also carries a judgment bar. Once a court enters judgment in an FTCA case against the United States, that judgment blocks any separate lawsuit against the individual employee whose conduct gave rise to the claim.¹⁵ You generally cannot pursue both an FTCA claim and a personal-capacity lawsuit against the officer for the same incident, so litigation strategy has to be decided early.

Attorney fees are capped. On administrative settlements before a lawsuit is filed, fees cannot exceed 20 percent. On judgments or judicial settlements after suit is filed, the cap is 25 percent. An attorney collecting more can be fined up to $2,000, imprisoned up to one year, or both.¹⁶ Because these caps sit below the typical 33 to 40 percent contingency fee in private personal injury work, finding experienced counsel for a smaller FTCA case can be harder.

Common Mistakes That Sink FTCA Claims

Even claims that fit the FTCA cleanly get lost to avoidable errors:

Underestimating the sum certain. If you list $50,000 on your SF-95 and later realize your damages are $300,000, you are generally stuck at the lower number. The only exception is newly discovered evidence that was not reasonably discoverable when you filed.⁴
Missing a deadline. Both the two-year administrative deadline and the six-month post-denial deadline are jurisdictional. Courts cannot waive them, regardless of the circumstances.⁸
Losing the discretionary function fight. Government lawyers will almost always characterize the conduct as a policy choice. Tying the employee’s failure to a specific mandatory regulation or protocol is what defeats that defense.
Underestimating evidence access problems. Getting documents from a federal agency during litigation is slow, and national security or law enforcement privilege claims may shield material you need.

An attorney with specific FTCA experience is worth finding before you draft the SF-95. Valuing the claim correctly for the sum certain, sending it to the right component’s claims office, and anticipating which exceptions the government will raise are all easier to get right the first time than to fix later.

1
Office of the Law Revision Counsel. 28 U.S. Code 1346 – United States as Defendant
2
Department of Homeland Security. Operational and Support Components
3
Transportation Security Administration. TSA Claims, Outreach, and Debt Branch Tort Claim Package
4
Office of the Law Revision Counsel. 28 U.S. Code 2675 – Disposition by Federal Agency as Prerequisite; Evidence
5
United States Department of Justice. Documents and Forms
6
General Services Administration. Claim for Damage, Injury, or Death
7
GovInfo. 28 U.S. Code 2672 – Administrative Adjustment of Claims
8
Office of the Law Revision Counsel. 28 U.S. Code 2401 – Time for Commencing Action Against United States
9
Office of the Law Revision Counsel. 28 U.S. Code 2680 – Exceptions
10
Justia Law. Berkovitz v. United States, 486 U.S. 531 (1988)
11
Supreme Court of the United States. Hernandez v. Mesa, No. 17-1678 (2020)
12
Supreme Court of the United States. Egbert v. Boule, No. 21-147 (2022)
13
Office of the Law Revision Counsel. 28 U.S. Code 2674 – Liability of United States
14
GovInfo. 28 U.S. Code 2402 – Jury Trial in Actions Against United States
15
Office of the Law Revision Counsel. 28 U.S. Code 2676 – Judgment as Bar
16
Office of the Law Revision Counsel. 28 U.S. Code 2678 – Attorney Fees; Penalty