The Federal Tort Claims Act lets private citizens sue the United States for injuries caused by federal employees acting on the job. Congress passed it in 1946 as a limited waiver of sovereign immunity, and it works in two stages: first an administrative claim to the agency involved, then, if that fails, a lawsuit in federal district court. The rules are strict, the deadlines are short, and the damages you can recover are narrower than in a typical personal-injury case.
What You Can Sue For
Federal district courts have exclusive jurisdiction over tort claims against the United States under 28 U.S.C. ยง 1346(b).1Office of the Law Revision Counsel. 28 U.S. Code 1346 – United States as Defendant The waiver is narrow. The government agrees to be sued only when one of its employees, acting within the scope of employment, causes injury, death, or property damage through negligence or a wrongful act. Courts then treat the government as if it were a private person in the same situation.
The negligence standard itself comes from state law. The FTCA does not create its own rules for what counts as wrongful conduct. Whether the government was at fault depends on the tort law of the state where the harm occurred. A slip in a federal building in Florida is judged by Florida premises-liability law. A car accident with a mail truck in Ohio is judged by Ohio negligence rules.
Who counts as an “employee of the government” is defined broadly enough to include officers, military members, National Guard personnel on federal training duty, and others acting on behalf of a federal agency, paid or unpaid. Independent contractors are not. The statute’s definition of “federal agency” carves out “any contractor with the United States,” and agencies sometimes argue that the person responsible for the harm was a contractor rather than an employee, which defeats the claim.2Office of the Law Revision Counsel. 28 U.S. Code 2671 – Definitions If a federal worker causes harm while on a personal errand or outside assigned duties, the government also keeps its immunity.
Claims the Statute Excludes
Even when a federal employee clearly caused harm on the job, several categories of claims are blocked outright.
Discretionary Function Exception
The most frequently invoked bar is the discretionary function exception. If the challenged conduct involved a policy decision or the weighing of competing considerations, courts cannot second-guess it, even if the choice turned out badly.3Office of the Law Revision Counsel. 28 U.S. Code 2680 – Exceptions The exception applies only where genuine judgment was involved. It does not cover cases where an employee simply failed to follow a mandatory rule or procedure.
Other Statutory Exceptions
Section 2680 lists more than a dozen additional categories the government will not entertain:
- Intentional torts such as assault, battery, false arrest, false imprisonment, malicious prosecution, libel, slander, misrepresentation, deceit, or interference with contract rights. Federal law enforcement officers are an exception: they can be sued for assault, battery, false arrest, false imprisonment, abuse of process, or malicious prosecution.3Office of the Law Revision Counsel. 28 U.S. Code 2680 – Exceptions
- Lost, misdirected, or negligently handled mail.
- Harm from the assessment or collection of taxes or customs duties, or the seizure of goods by law enforcement.
- Damage caused by a quarantine imposed by the United States.
- Combatant activities of the armed forces during wartime.
- Any claim that arose in a foreign country.
Active-Duty Service Members and Feres
Active-duty service members face an extra hurdle that is not in the statute. Under the Feres doctrine, a Supreme Court rule from 1950, the government is not liable under the FTCA for injuries to military personnel that arise out of or in the course of activity incident to their service.4Congress.gov. Feres v. United States A soldier hurt in training generally cannot bring an FTCA claim, even where a fellow service member’s negligence caused the injury.
One narrow crack exists. The SFC Richard Stayskal Military Medical Accountability Act of 2019 created an administrative process through which service members can seek compensation from the Department of Defense for malpractice by military medical providers.4Congress.gov. Feres v. United States That remedy runs through the Department, not the courts.
The Two Deadlines That Decide Your Case
The statute uses the phrase “forever barred,” and courts enforce it literally. Two clocks matter.
You have two years from the date the claim accrues to present a written administrative claim to the responsible agency. Accrual usually means the date of the injury, but for harms that are not immediately apparent, such as medical malpractice, the clock may start when you discover, or reasonably should have discovered, both the injury and its connection to government conduct.5Office of the Law Revision Counsel. 28 U.S. Code 2401 – Time for Commencing Action Against United States The burden of proving delayed discovery falls on you.
Once the agency mails a final written denial, you have six months from that mailing date to file a lawsuit in federal court.5Office of the Law Revision Counsel. 28 U.S. Code 2401 – Time for Commencing Action Against United States Miss it and the claim is gone.
The two-year clock is where most claims die. Waiting until you know the full extent of your damages is a common and costly mistake. File the administrative claim early and keep gathering evidence while the agency reviews it.
Filing the Administrative Claim
You cannot go straight to court. The statute bars any lawsuit until you have first presented the claim to the agency whose employee caused the harm and either received a denial or waited out six months of agency silence.6Office of the Law Revision Counsel. 28 U.S. Code 2675 – Disposition by Federal Agency
Standard Form 95 is the usual vehicle. The Department of Justice notes that SF-95 is “not required” but serves as “a convenient format for supplying the information necessary to bring an FTCA claim.”7Department of Justice. Civil Division Documents and Forms Whether you use the form or another written format, two elements are mandatory: a description of what happened, and a specific dollar amount you are claiming.
The Sum Certain
The dollar figure is called the “sum certain.” The SF-95 instructions warn that leaving it out “will render your claim invalid and may result in forfeiture of your rights.”8General Services Administration. Standard Form 95 – Claim for Damage, Injury, or Death A range or an estimate does not satisfy the requirement. You need a single number. The figure also effectively caps what you can recover later in court, so a low number filed to hit the deadline can hurt you.
What to Attach
A narrative alone is rarely enough. For personal injury, gather medical records, itemized bills, and statements from treating physicians. For property damage, the SF-95 instructions call for at least two itemized repair estimates from independent sources, or signed receipts if you have already paid.8General Services Administration. Standard Form 95 – Claim for Damage, Injury, or Death Witness statements, police reports, and photographs help the agency evaluate the demand. Everything should connect the federal employee’s conduct to the harm you suffered.
What the Agency Does Next
Send the claim by certified mail with return receipt so you have proof of delivery. Once the agency has it, the six-month review period begins. During that window, the agency may offer a settlement, ask for more documentation, or issue a formal written denial. If nothing happens in six months, you can treat the silence as a denial and file suit whenever you’re ready.6Office of the Law Revision Counsel. 28 U.S. Code 2675 – Disposition by Federal Agency
Waiting past six months is fine if the agency looks like it’s working the claim in good faith. Just remember: the moment a formal denial letter goes in the mail, the six-month lawsuit clock starts whether you are ready or not.
If You End Up in Federal Court
One feature surprises many claimants. FTCA cases are tried by a judge sitting alone. There is no jury.9Office of the Law Revision Counsel. 28 U.S. Code 2402 – Jury Trial in Actions Against United States The judge decides the facts and the law. That makes FTCA litigation different from typical personal-injury cases, where jury sympathy can influence outcomes. Bench trials tend to be methodical and document-heavy, which puts a premium on the quality of the administrative record you built earlier.
The court applies the tort law of the state where the incident happened and treats the government as a private defendant under those standards.1Office of the Law Revision Counsel. 28 U.S. Code 1346 – United States as Defendant State-law rules on standard of care, comparative fault, and damage caps for particular tort categories all apply.
What You Can Recover, and What Your Lawyer Can Charge
Recovery is limited to compensatory damages. The statute expressly prohibits punitive damages and pre-judgment interest.10Office of the Law Revision Counsel. 28 U.S. Code 2674 – Liability of United States Medical expenses, lost income, pain and suffering, property damage, and wrongful-death losses are on the table. There is no mechanism to punish the government for egregious behavior. In wrongful-death cases where state law provides only punitive-type damages, the FTCA substitutes actual compensatory damages measured by the financial losses to survivors.
Attorney fees are capped by federal law. A lawyer cannot charge more than 20 percent of an administrative settlement or more than 25 percent of a judgment or settlement obtained after suit is filed.11Office of the Law Revision Counsel. 28 U.S. Code 2678 – Attorney Fees; Penalty Violating the caps is a federal misdemeanor. These limits sit below the one-third contingency common in private personal-injury work, which is one reason some attorneys turn down smaller FTCA claims.
Taxes on What You Recover
Damages for physical injuries or physical sickness are generally excluded from federal gross income under Internal Revenue Code Section 104(a)(2). The exclusion covers the compensatory award itself, including amounts allocated to pain and suffering, medical costs, and lost wages, as long as those elements flow from a physical injury.12Office of the Law Revision Counsel. 26 U.S. Code 104 – Compensation for Injuries or Sickness
Standalone emotional-distress claims are treated differently. The statute states that emotional distress “shall not be treated as a physical injury or physical sickness.”12Office of the Law Revision Counsel. 26 U.S. Code 104 – Compensation for Injuries or Sickness Damages for emotional distress without an underlying physical injury are taxable as ordinary income, though you can exclude the portion that reimburses out-of-pocket medical costs for treating the distress. If you deducted those costs on an earlier return, the reimbursement may be taxable under the tax-benefit rule.13Internal Revenue Service. Tax Implications of Settlements and Judgments Because the FTCA already bars punitive damages, the common trap of taxable punitive awards does not come up in these cases.