Federal Tort Claims Act Coverage: Exceptions, Claims, and Recovery

The Federal Tort Claims Act is the law that lets you sue the United States for money damages when a federal employee’s negligence or wrongful act on the job injures you, kills a family member, or damages your property. It works by treating the government roughly the way a private employer would be treated under the law of the state where the incident happened, but it comes with a long list of exclusions, a mandatory administrative claim you have to file first, a two-year deadline, and caps on what you can recover.

When the FTCA Covers You

Two conditions have to be satisfied before the statute applies at all. The harm must have been caused by a negligent or wrongful act, and a private person doing the same thing in that state would have to be liable under state law.¹ If a private employer would not be on the hook for the same conduct in that state, the federal government isn’t either.

The person who caused the harm also has to have been a federal employee acting within the scope of their job. Scope of employment is judged under the same state-law rules that govern private employers. Independent contractors the government hires generally do not count as federal employees, so the government typically is not liable for their conduct.

One category of workers gets FTCA protection even though they aren’t technically federal employees. Staff at federally qualified health centers approved by the Health Resources and Services Administration are treated as deemed federal employees for malpractice purposes, which routes malpractice claims against them through the FTCA rather than a private lawsuit.²

You cannot sue the individual employee personally for on-the-job negligence. The FTCA is the exclusive remedy, and once the Attorney General certifies that the employee was acting within the scope of employment, any suit against the employee is converted into a claim against the United States and removed to federal court if it started in state court.³

What the FTCA Will Not Cover

Meeting the two threshold conditions is not enough. The statute keeps the government immune in a long list of situations, and running into one of these exclusions ends the claim no matter how strong the facts look otherwise.

The Discretionary Function Exception

This is the exclusion that kills the most claims. The government cannot be sued for any action that involves a policy judgment or a decision grounded in social, economic, or political considerations. Courts apply a two-part test: did the employee’s conduct involve an element of choice, and was the choice the kind rooted in policy that Congress meant to protect?⁴ If a specific regulation or policy dictated what the employee had to do, there was no discretion to protect. If the decision required balancing competing priorities, the exception usually applies.

Intentional Torts (With a Law Enforcement Exception)

The FTCA generally bars claims based on intentional wrongdoing, including assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contract rights.⁴ Congress carved out an important exception for federal investigative and law enforcement officers empowered to execute searches, seize evidence, or make arrests. When the intentional tort is committed by that kind of officer, you can bring claims for assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution. Libel, slander, misrepresentation, deceit, and interference with contract rights remain excluded even for law enforcement.

Other Statutory Exclusions

Injuries that occur outside the United States.
Claims arising from combatant activities of the military in wartime.
Losses from lost, misdelivered, or negligently handled mail.
Claims tied to tax assessment or collection, or to customs officers detaining goods.
Damages caused by a quarantine imposed by the United States.
Maritime tort claims, which go through separate admiralty statutes.

The Feres Doctrine

The broadest practical exclusion isn’t in the statute. Under Feres v. United States, active-duty military members cannot sue under the FTCA for injuries incident to military service. Courts apply this bar broadly, from military medical malpractice to training injuries, and it remains in force despite heavy criticism.

The Two-Year Administrative Claim

You cannot walk into federal court and file an FTCA lawsuit. The statute requires you to first present a written claim to the federal agency responsible for the harm, and courts dismiss suits for lack of jurisdiction when this step is skipped.⁵

The claim has to reach the agency within two years of when it accrues, or it is “forever barred” in the statute’s own words.⁶ Accrual is not always the date of the incident. Under the discovery rule, the claim accrues when you knew or reasonably should have known about the injury, which matters in medical error and toxic exposure cases where the harm surfaces later.⁷

Most people use Standard Form 95, but any written notice that identifies the claimant, describes the incident and injury with a date, and demands a specific dollar amount will work.⁸ The dollar figure is called a “sum certain.” A vague request for fair compensation, or a range of numbers, can get the claim rejected as legally insufficient.

Get that number right. If the case later goes to court, you generally cannot recover more than the amount stated on the administrative claim. The only exceptions are newly discovered evidence that wasn’t reasonably available when you filed, or new facts that increase your damages.⁵ Take the time upfront to calculate future medical costs and lost earning capacity before locking in a figure.

Send the claim by certified or registered mail so you have proof of when the agency received it. Attach medical records, bills, repair estimates, and incident reports.

What Happens After You File

The agency has six months to investigate. It can pay, deny the claim in writing, or say nothing at all.

A formal denial has to come by certified or registered mail, explain the reasons, and tell you that you have six months from the mailing date to file a lawsuit.⁹ That six-month lawsuit clock is as unforgiving as the two-year filing deadline. Miss it and you lose the right to sue.⁶

Before suing, you can ask the agency to reconsider. A written reconsideration request has to go in within six months of the denial and should set out the legal and factual grounds for reversing the decision with supporting documents. Filing one pauses the six-month lawsuit clock for at least another six months or until the agency acts, whichever is later.¹⁰ The agency’s decision on reconsideration is final. No further reconsideration is allowed absent fraud.

If six months pass with no decision, you can treat the silence as a denial and go straight to federal court.⁵ You can also keep waiting. But if you amend the administrative claim while it’s pending, the agency gets a fresh six months to rule on the amended version.¹¹

Filing the Lawsuit

The suit belongs in U.S. District Court. Filing before the agency denies the claim or before six months pass will get the case dismissed.

Name the United States of America as the defendant. Not the agency, not the employee.¹² You have two venue options: the federal district where you live, or the district where the incident happened.¹³

Service is more involved than for a private defendant. Under Federal Rule of Civil Procedure 4, you deliver the summons and complaint to the U.S. Attorney for the district (or send it by certified or registered mail to the civil-process clerk at that office) and also send copies by certified or registered mail to the Attorney General in Washington, D.C.¹⁴ If the suit challenges a specific agency, mail copies to that agency too. Courts will let you fix service defects, but do it right the first time.

One feature catches many claimants off guard: there is no jury. The statute provides that FTCA actions are tried “by the court without a jury.”¹⁵ A judge decides both facts and law, which means detailed documentation and expert testimony carry more weight than emotional argument.

What You Can Recover

Winning under the FTCA is not the same as winning against a private defendant. Punitive damages are flatly prohibited, even when state law would allow them against a private party. The government also cannot be charged prejudgment interest.¹⁶ In a wrongful death case governed by a state that only allows punitive-style damages, the government pays actual compensatory damages measured by the financial harm to surviving family members.

Compensatory damages cover medical bills, lost wages, rehabilitation, and pain and suffering, and they are calculated under the law of the state where the injury occurred.¹⁶ If that state caps non-economic damages in medical malpractice cases, the same cap applies to your FTCA claim. About half the states impose some form of malpractice cap on non-economic damages.

Your attorney’s fee is capped too. For claims settled at the administrative level before any lawsuit is filed, the fee cannot exceed 20% of the settlement. Once a suit is filed, the ceiling rises to 25% of any judgment or settlement.¹⁷ An attorney who charges more faces a fine of up to $2,000, up to a year in prison, or both. The caps apply to contingency and hourly arrangements alike.

How the Money Is Taxed

Tax treatment depends on the type of harm the money compensates. Damages received for personal physical injuries or physical sickness are excluded from gross income under Internal Revenue Code Section 104(a)(2), whether the payment is a settlement or a judgment.¹⁸ That exclusion covers compensatory damages, including lost wages, as long as the lost wages were awarded on account of a physical injury.

Purely emotional or psychological damages with no underlying physical injury are taxable as ordinary income. Emotional distress that flows from a physical injury, such as post-traumatic stress after a crash caused by a federal driver, keeps the exclusion.¹⁸ How the settlement document allocates damages between physical and non-physical categories can affect the IRS treatment, so work through the allocation with a tax professional before signing.

1
Office of the Law Revision Counsel. 28 USC 1346 – United States as Defendant
2
Health Resources & Services Administration. Chapter 21 – Federal Tort Claims Act (FTCA) Deeming Requirements
3
Office of the Law Revision Counsel. 28 US Code 2679 – Exclusiveness of Remedy
4
Office of the Law Revision Counsel. 28 US Code 2680 – Exceptions
5
Office of the Law Revision Counsel. 28 US Code 2675 – Disposition by Federal Agency as Prerequisite
6
Office of the Law Revision Counsel. 28 US Code 2401 – Time for Commencing Action Against United States
7
eCFR. 32 CFR Part 750 Subpart B – Federal Tort Claims Act
8
eCFR. 29 CFR Part 15 – Administrative Claims Under the Federal Tort Claims Act
9
eCFR. 28 CFR Part 14 – Administrative Claims Under Federal Tort Claims Act – Section 14.9
10
eCFR. 32 CFR 536.89 – Reconsideration of Federal Tort Claims Act Claims
11
eCFR. 28 CFR Part 14 – Administrative Claims Under Federal Tort Claims Act – Section 14.2
12
Office of the Law Revision Counsel. 28 USC Chapter 171 – Tort Claims Procedure
13
Office of the Law Revision Counsel. 28 US Code 1402 – United States as Defendant
14
Legal Information Institute. Federal Rules of Civil Procedure Rule 4 – Summons
15
Office of the Law Revision Counsel. 28 US Code 2402 – Jury Trial in Actions Against United States
16
Office of the Law Revision Counsel. 28 USC 2674 – Liability of United States
17
Office of the Law Revision Counsel. 28 USC 2678 – Attorney Fees; Penalty
18
Internal Revenue Service. Tax Implications of Settlements and Judgments