Federal Tort Claims Act: Filing, Immunity, and Recovery

The Federal Tort Claims Act lets you seek money damages from the United States when a federal employee’s negligence, acting on the job, causes injury, death, or property damage. Before you can sue, you must file an administrative claim with the responsible agency within two years of the injury. If the agency denies the claim or ignores it for six months, you can then take the case to a federal district court, where a judge (never a jury) will decide it under the negligence law of the state where the incident happened. Punitive damages are off the table, attorney fees are capped, and several broad categories of government conduct remain immune from suit.

What You Have to Prove

Three elements have to line up. A federal employee caused the harm. That employee was acting within the scope of their job at the time. And a private person in the same shoes would be liable under the law of the place where it happened.¹ Miss any one of them and the claim fails.

The employee requirement is trickier than it sounds. Contractors are excluded from the statutory definition of a federal employee.² When it’s unclear, courts look at how much day-to-day control the government exercised over the person’s work, weighing that more heavily than a job title or contract label.

The “law of the place” piece means state law governs the negligence question. A postal truck that rear-ends you in Ohio is judged under Ohio negligence rules. If a private employer would not be liable for the same conduct, neither is the government.¹

You Cannot Sue the Employee Personally

For on-the-job negligence by a federal employee, the FTCA is the exclusive remedy. Under the Westfall Act, any attempt to sue the individual employee will be converted into an FTCA claim against the United States or dismissed. Two narrow paths remain open against the person directly: a constitutional tort claim (such as a Fourth Amendment claim) or a suit under a separate federal statute that specifically authorizes individual liability.³

Filing the Administrative Claim

You cannot walk into court first. The FTCA requires you to file an administrative claim with the agency that employed the person responsible, and a judge will dismiss any lawsuit filed before that step is complete.⁴

Standard Form 95 and the Sum Certain

The claim is normally filed on Standard Form 95, available through the General Services Administration.⁵ The single most important entry on the form is the “sum certain”: a specific dollar figure covering all your claimed damages. Blanks and phrases like “to be determined” don’t count. The form instructions warn that a missing sum certain can invalidate the claim and forfeit your rights.⁶

Pick that number carefully. If you later have to sue, your court award generally cannot exceed the amount you wrote on the SF-95. The only escape is newly discovered evidence or a change in your condition that justifies a higher figure.⁴ You can amend the figure while the claim is still pending, so updating it as damages become clearer is common.

Supporting Evidence

The form by itself rarely persuades an agency to pay. For injuries, include medical records, diagnostic reports, treatment bills, and a physician’s statement on the nature and severity of the injury, the prognosis, and any period of disability. For property damage, include repair estimates or appraisals showing value before and after. If you’re filing on behalf of someone who died or cannot act for themselves, attach proof of your authority as executor, administrator, guardian, or authorized agent, and file the claim in the injured person’s name.⁶

The Two-Year Deadline

You have two years from the date the claim accrues to get the SF-95 to the correct agency.⁷ Accrual usually runs from the date of injury, but for a latent harm like a delayed medical diagnosis, it can run from when you discovered or reasonably should have discovered the injury. Miss the deadline and the claim is permanently barred.

Getting the right agency matters as much as getting the date right. The claim goes to the department that employed the person responsible, whether that is the Department of Veterans Affairs, the Postal Service, or another entity. Send it by certified mail with a return receipt so you can prove the delivery date.

What Happens After the Agency Gets Your Claim

The agency has at least six months to investigate and respond.⁴ Within that window the agency can settle. Settlements up to $25,000 can be approved by the agency head; anything higher requires written approval from the Attorney General or a designee.⁸ Accepting a settlement ends the case.⁹

If the agency issues a written denial, you have exactly six months from the date of that denial letter to file suit in a U.S. district court.⁷ If the agency simply never answers within its initial six months, you can treat that silence as a denial and go to court whenever you choose.⁴ Both deadlines are enforced strictly.

FTCA cases are tried by a judge, not a jury.¹⁰ The judge alone weighs the evidence and decides liability and damages under the applicable state negligence law.

What You Can Recover, and What You Can’t

The government is liable “in the same manner and to the same extent as a private individual,” but the statute expressly bars punitive damages and prejudgment interest.¹¹ Compensatory damages are available: medical expenses, lost wages, pain and suffering, property repair costs. Nothing designed to punish. In a case that might have produced a large punitive award against a private defendant, this alone can reduce the recovery significantly.

Your court award also cannot exceed the sum certain from your SF-95 unless newly discovered evidence or a change in circumstances justifies more.⁴

Attorney fees are capped by statute. If the claim resolves at the administrative stage, an attorney cannot charge more than 20% of the recovery. If it goes to court and produces a judgment or judicial settlement, the cap is 25%. Charging more is a crime punishable by a fine of up to $2,000, up to a year in prison, or both.¹²

When the Government Stays Immune

Several categories of government conduct are carved out of the FTCA entirely. Even a clear case of negligence cannot get past them.¹³

Discretionary Functions

The broadest and most litigated exception blocks claims based on an employee’s exercise of a “discretionary function.” Policy-level judgments (budget allocations, enforcement priorities, program design) are protected from second-guessing in court.¹³ If a specific statute or regulation told the employee exactly what to do and they didn’t do it, the exception doesn’t apply. Where there was room for judgment, the government is generally shielded.

The Feres Doctrine

Active-duty service members cannot sue under the FTCA for injuries incident to military service. The rule comes from a 1950 Supreme Court decision and has been applied broadly, including to negligent medical treatment at military hospitals.¹⁴ It remains binding law.

Intentional Torts

Assault, battery, false arrest, false imprisonment, defamation, and fraud by federal employees are generally not compensable under the FTCA. One important carve-out: federal law enforcement officers who are empowered to execute searches, seize evidence, or make arrests can be sued through the FTCA for assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution.¹³ This is the main route for excessive-force claims against federal agents.

Other Excluded Categories

Injuries that occur in a foreign country.
Claims arising from lost or mishandled mail.
Claims related to tax assessment or collection, or the detention of goods by customs officers, with a narrow exception allowing recovery for property damage during seizures.
Harm caused by a federally imposed quarantine.
Maritime injuries, which fall under a separate admiralty framework.

These bars apply even when the employee was clearly negligent.¹³

A Trap Worth Knowing: Community Health Centers

Many patients never expect the FTCA to touch their medical malpractice case. It can. If you’re treated at a Federally Qualified Health Center that has been “deemed” a Public Health Service employer, the United States steps in as the defendant for malpractice, and the FTCA process is the only path.¹⁵ The protection only covers care within the clinic’s approved scope of services; anything outside that scope is handled by the clinic on its own. Before filing a malpractice suit against a community clinic, check its deemed status with the Health Resources and Services Administration so the claim goes to the right place with the right form on the right deadline.

1
Office of the Law Revision Counsel. 28 U.S. Code 1346 – United States as Defendant
2
GovInfo. 28 U.S. Code 1346 – United States as Defendant
3
Office of the Law Revision Counsel. 28 U.S. Code 2679 – Exclusiveness of Remedy
4
Office of the Law Revision Counsel. 28 U.S. Code 2675 – Disposition by Federal Agency as Prerequisite; Evidence
5
General Services Administration. Claim for Damage, Injury, or Death
6
General Services Administration. Standard Form 95 – Claim for Damage, Injury, or Death
7
Office of the Law Revision Counsel. 28 U.S. Code 2401 – Time for Commencing Action Against United States
8
Office of the Law Revision Counsel. 28 U.S. Code 2672 – Administrative Adjustment of Claims
9
Office of the Law Revision Counsel. 28 U.S. Code 2677 – Compromise
10
Office of the Law Revision Counsel. 28 U.S. Code 2402 – Jury Trial in Actions Against United States
11
Office of the Law Revision Counsel. 28 U.S. Code 2674 – Liability of the United States
12
Office of the Law Revision Counsel. 28 U.S. Code 2678 – Attorney Fees; Penalty
13
Office of the Law Revision Counsel. 28 U.S. Code 2680 – Exceptions
14
Supreme Court of the United States. Beck v. United States (2025)
15
Health Resources and Services Administration. FSHCAA FTCA Deemed Status Badge