Federal Tort Claims Act: Filing, Deadlines, and Recovery

The Federal Tort Claims Act lets you recover money from the United States when a federal employee’s negligence injures you or damages your property, but only if you follow a strict two-step process: file a written administrative claim with the responsible agency within two years of the injury, then, if the agency denies the claim or sits on it for six months, file suit in federal district court within six months of the denial.¹ Miss either deadline and the case is over. Several broad categories of claims are excluded entirely, and even winning claims are capped in ways private lawsuits are not.

The Two-Year Clock and the Six-Month Clock

Your written administrative claim must reach the correct federal agency within two years of the date the claim accrues, which is usually the date of the injury or the date you reasonably should have discovered it.¹ The statute says a late claim is “forever barred.” Courts enforce this without sympathy. There is no general equitable tolling, and judges have almost no discretion to extend the deadline.

A second deadline runs after the agency acts. If the agency formally denies your claim, you have six months from the date it mails the denial letter to file suit in federal district court.¹ The clock starts on the mailing date, not the date you open the envelope. Both deadlines are jurisdictional, so a court will dismiss your case for missing either one no matter how strong the underlying facts are.

Who Is Covered and Who Is Not

Liability turns on two questions: was the person who caused the harm a federal employee, and were they acting within the scope of their job? The statute defines “employee of the government” broadly to include officers and employees of any federal agency, military service members, National Guard members performing federal training or duty, and anyone acting on behalf of a federal agency in an official capacity, paid or unpaid.²

Independent contractors are excluded. The statute carves any “contractor with the United States” out of the definition of a federal agency, so injuries caused by a private company working on a government contract generally cannot be pursued under the FTCA.² Courts look at day-to-day control. If the government directs what work gets done but not how, the worker is likely a contractor and the government is off the hook.

“Scope of employment” means the employee was performing duties the agency authorized or doing something that served the government’s interests. A postal carrier who causes a traffic accident during deliveries is within scope. The same carrier on a personal errand at lunch probably is not. State law where the incident occurred typically governs this question.

One wrinkle worth knowing: if you sue a federal employee personally for something they did on the job, the Attorney General can certify that the employee was acting within scope and substitute the United States as the defendant. Your case then becomes an FTCA case with all its procedural strings attached.³ Naming the individual instead of the government almost never works as a workaround.

Claims the Act Does Not Cover

The waiver of immunity has significant exceptions, and this is where most claims die.

Discretionary Function

The FTCA does not apply to claims based on a federal employee’s exercise of a “discretionary function or duty,” even if the employee abused that discretion.⁴ When a government employee makes a judgment call rooted in policy considerations, the government cannot be sued for the outcome. In Berkovitz v. United States, the Supreme Court set the test: the exception applies only if the challenged action was actually a matter of choice and the choice was the kind of judgment grounded in public policy.⁵ If a statute, regulation, or specific agency protocol told the employee exactly what to do, there was no discretion.

In practice, this exception shields decisions about how aggressively to enforce regulations, which safety standards to adopt, and how to design government programs. It does not shield an employee who ignores a mandatory safety checklist or violates a specific agency protocol.

Intentional Torts, With a Law Enforcement Exception

The Act generally bars claims arising from intentional wrongdoing like assault, battery, false arrest, false imprisonment, defamation, misrepresentation, and interference with contracts. Congress carved out an exception for federal law enforcement: investigative or law enforcement officers empowered to execute searches, seize evidence, or make arrests for federal violations can be held liable for assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution.⁴ Defamation and misrepresentation remain excluded even for law enforcement officers.

Active-Duty Military Injuries

Service members are defined as federal employees, but the Supreme Court held in Feres v. United States that the government is not liable for injuries to service members arising out of activity “incident to service.”⁶ An active-duty soldier injured by a military surgeon’s negligence during an on-base procedure traditionally had no FTCA remedy.

Congress partially addressed this in 2019. Under 10 U.S.C. § 2733a, service members can file claims against the Department of Defense for personal injury or death caused by a military healthcare provider’s negligence at a covered military treatment facility.⁷ These claims have their own two-year filing deadline and are processed internally by the Defense Department, not through the standard FTCA channel. The broader Feres bar on other service-connected injury claims still stands.

Other Bars

The FTCA also excludes claims arising in a foreign country, claims related to tax collection and customs enforcement, claims involving postal losses, and claims for which another federal statute already provides a remedy.⁴ The foreign country bar trips up military families and government contractors stationed overseas. If the negligent act happened outside U.S. territory, the FTCA does not apply.

Filing the Claim: Form SF-95

The standard form is the SF-95, available from agency websites or the General Services Administration.⁸ It asks for a description of the incident, names and contact information for involved parties and witnesses, and separate dollar figures for property damage, personal injury, and wrongful death.

The most important field is the “sum certain,” a specific dollar amount representing your total claim. You cannot list a range or leave it blank. The form warns that failing to state a sum certain can cause forfeiture of your rights.⁸ This number matters well beyond the administrative stage. If your case reaches court, you generally cannot recover more than the amount you originally claimed unless you can show that newly discovered evidence or facts that emerged after filing justify the increase.⁹ Undervaluing at this stage can permanently limit what you recover. Overvaluing carries no legal penalty.

Supporting documentation should accompany the form. For injuries, that means medical records, itemized treatment bills, and written statements from treating physicians about diagnosis and prognosis. For property damage, include independent repair estimates or evidence of fair market value. Photographs and witness contact information help. Strong documentation improves the chance of a settlement without litigation.

Submit the completed form to the specific agency that employed the person who caused the injury: the Department of Veterans Affairs for a VA hospital incident, the Department of Defense for a military base accident, and so on. Sending the claim to the Department of Justice or a central government office is a common and costly mistake. Use certified mail with a return receipt.

What the Agency Does Next

The agency has six months to investigate. It may interview witnesses, request medical examinations, or ask for supplemental documentation. Three outcomes are possible:

Settlement offer. The agency proposes a dollar amount. If you accept, the case is resolved without litigation.
Formal denial. The agency sends a written denial by certified or registered mail. The denial must inform you that you have six months from the mailing date to file suit in federal district court.¹⁰
Silence. If the agency fails to make a final decision within six months, you can treat the silence as a denial and proceed to court whenever you choose after that point.¹¹

If your condition worsens or you discover additional losses, you can amend your claim in writing at any time before the agency issues a final decision or before you file suit. An amendment resets the agency’s six-month review clock from the date of the amendment.¹²

Moving to Federal Court

You cannot skip the administrative process. Filing suit before the agency has denied your claim or before the six-month waiting period expires will get your case dismissed.¹¹ Courts do not overlook this exhaustion requirement.

Once you clear it, you file a complaint in the U.S. District Court with jurisdiction over the location where the injury occurred. If the agency formally denied your claim, you have six months from the mailing date of the denial letter. FTCA trials are bench trials. A federal judge decides the case, not a jury.¹³ The government is represented by attorneys from the Department of Justice or the local U.S. Attorney’s Office. Standard discovery rules apply. The process looks like ordinary civil litigation, minus the jury.

The judge determines liability using the law of the state where the act or omission occurred. The statute treats the government as if it were a private person “in accordance with the law of the place where the act or omission occurred.”¹⁴ State tort standards, state damage rules, and in some cases state caps on certain categories of damages all apply. A medical malpractice claim at a VA hospital in a state with a cap on non-economic damages is subject to that cap.

What You Can Actually Recover

Recoveries are limited to compensatory damages: money for actual losses like medical bills, lost income, pain and suffering, and property damage. The statute prohibits punitive damages and pre-judgment interest.¹⁵ However egregious the government’s conduct, a court cannot award damages designed to punish.

Your recovery is also capped by the sum certain you wrote on the SF-95. You cannot obtain more than you originally claimed unless newly discovered evidence or intervening facts justify a higher amount.⁹ A claimant who writes $50,000 on the form and later learns the injury requires surgery costing $200,000 faces an uphill battle to recover the full cost.

Attorney fees are capped by statute. For claims resolved during the administrative stage, an attorney cannot collect more than 20 percent of the recovery. If the case goes to federal court, the cap rises to 25 percent of any judgment or settlement.¹⁶ Attorneys who exceed these limits face a misdemeanor charge and up to a year in jail under the same statute. These caps make FTCA cases less lucrative than comparable private-party lawsuits, which partly explains why finding representation can be difficult for smaller claims.

1
Office of the Law Revision Counsel. 28 USC 2401 – Time for Commencing Action Against United States
2
Office of the Law Revision Counsel. 28 USC 2671 – Definitions
3
Office of the Law Revision Counsel. 28 USC 2679 – Exclusiveness of Remedy
4
Office of the Law Revision Counsel. 28 USC 2680 – Exceptions
5
Justia. Berkovitz v United States, 486 US 531 (1988)
6
Justia. Feres v United States, 340 US 135 (1950)
7
Office of the Law Revision Counsel. 10 USC 2733a – Military Medical Malpractice Claims
8
General Services Administration. Standard Form 95 – Claim for Damage, Injury, or Death
9
Office of the Law Revision Counsel. 28 USC 2675 – Disposition by Federal Agency as Prerequisite
10
eCFR. 28 CFR 14.9 – Final Denial of Claim
11
Office of the Law Revision Counsel. 28 USC 2675 – Disposition by Federal Agency as Prerequisite
12
eCFR. 28 CFR 14.2 – Administrative Claim, When Presented
13
Office of the Law Revision Counsel. 28 USC 2402 – Jury Trial in Actions Against United States
14
Office of the Law Revision Counsel. 28 USC 1346 – United States as Defendant
15
Office of the Law Revision Counsel. 28 USC 2674 – Liability of United States
16
Office of the Law Revision Counsel. 28 USC 2678 – Attorney Fees and Penalty