28 U.S.C. §§ 1346(b), 2671–2680
FTCA: suing the United States for a federal employee's negligence
A federal claim in United States district courts · Last verified August 26, 2026
The federal government cannot be sued without its consent. The Federal Tort Claims Act is that consent, given narrowly and hedged with conditions — and the conditions are where these cases die.
Two of them account for most of the losses. You must present a written claim, with a specific dollar amount, to the agency before you file — and most circuits treat that as jurisdictional, meaning no amount of diligence cures it after the fact. And the discretionary function exception withdraws the consent for any conduct involving a judgment call grounded in policy, which covers far more government activity than people expect.
What the claim is
A federal employee, acting within the scope of employment, negligently or wrongfully injured you, and you want money.
The recurring cases: medical malpractice at a Veterans Affairs or military hospital, a collision with a postal or federal vehicle, a slip and fall in a federal building, negligent supervision or inspection, and law-enforcement conduct during a search or arrest.
You sue the United States — never the employee.
Where the right comes from
An express waiver of sovereign immunity, and the statute imports state law to fill in the tort:
for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Read the last clause carefully. The substantive tort law is the law of the state where the act happened. There is no federal law of negligence here. If a private person in that state would not be liable for the same conduct, neither is the United States — which is why a claim can fail because the state recognises no analogous private duty.
What a plaintiff has to prove
Six elements, drawn from the statute itself: a claim (1) against the United States, (2) for money damages, (3) for injury, loss of property, or death, (4) caused by a government employee's negligent or wrongful act or omission, (5) within the scope of employment, (6) under circumstances where a private person would be liable under the law of the place.
Element five is contested more than any other. Element six is the one that quietly defeats novel claims — you must find a private analogue in state law, and for uniquely governmental functions there often is none.
Then the state-law tort elements on top: duty, breach, causation, damages, as that state defines them.
How long you have to file
Two clocks, and they do different things.
Two years from accrual to present the claim to the agency in writing.
Six months from the agency's written final denial to file suit in court.
The second clock does not start until there is a written denial. If the agency does nothing for six months after presentment, you may treat the silence as a denial and sue — but you are not required to, and the six-month suit clock has not started.
Accrual is generally at injury, with a discovery rule for latent harm: under United States v. Kubrick the claim accrues when the plaintiff knows of the injury and its cause — not when they learn the conduct was legally wrongful.
Both time bars are non-jurisdictional and subject to equitable tolling, which the Supreme Court settled in United States v. Kwai Fun Wong. That is a genuine safety valve, and it is often confused with the presentment requirement below, which is a different thing entirely.
What has to happen before you file
Presentment. This is the section to read twice.
An action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing ....
Presentment requires two things: written notice sufficient to let the agency investigate, and a sum certain — an actual dollar figure. A letter describing the incident without naming an amount is generally not presentment.
Character of the requirement: most circuits treat presentment as a jurisdictional bar — non-waivable, and not curable by presenting the claim after filing suit. In McNeil v. United States the Supreme Court held a suit filed before exhaustion must be dismissed even though the claimant completed the process while the case was pending. Filing early does not become filing late.
But this is now contested. After Kwai Fun Wong held the time bars non-jurisdictional, the Sixth Circuit questioned whether the sum-certain element of presentment remains jurisdictional. Other circuits continue to treat presentment as jurisdictional. The split is live and is a strong candidate for Supreme Court review.
How this differs from its neighbours, since the three get conflated: the employment-discrimination charge requirement is a claim-processing rule an employer can forfeit; the Social Security 60-day clock is a limitations period a court can toll; FTCA presentment is a condition on a waiver of sovereign immunity, construed strictly, and jurisdictional in most circuits. Three prerequisites, three different consequences for missing them.
Who can be sued — and who cannot
Only the United States. Naming the individual employee is wrong, and the Westfall Act makes it futile: once the Attorney General certifies the employee was acting within the scope of employment, the United States is substituted as defendant.
Independent contractors are not "employees" of the government, and the United States is not liable for their torts — a distinction that defeats many claims against contractor-run facilities.
Then the exceptions, which withdraw consent entirely for whole categories:
The discretionary function exception is the big one. A two-part test: first, does the conduct involve an element of judgment or choice, rather than being controlled by a mandatory statute, regulation, or policy? Second, is that judgment the kind the exception was designed to shield — susceptible to policy analysis? Berkovitz v. United States and United States v. Gaubert supply the framework. More FTCA claims fail here than anywhere else.
The intentional tort exception bars assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contract. But a law-enforcement proviso restores several of those — assault, battery, false imprisonment, false arrest, abuse of process, malicious prosecution — for acts of investigative or law-enforcement officers. In Millbrook v. United States the Court held that proviso is not limited to conduct during a search, seizure, or arrest.
The Feres doctrine bars claims by servicemembers for injuries incident to military service. It appears nowhere in the statute and has been criticised for decades. It remains the law.
Other exceptions cover postal loss, tax collection, quarantine, combatant activities, fiscal operations, and claims arising in a foreign country.
The judgment bar closes the loop: a judgment in an FTCA action bars any later action against the employee on the same subject matter, and a merits dismissal triggers it. A dismissal because the claim falls within an exception does not.
Common defenses
Any exception, above all discretionary function. No private analogue under state law. Independent contractor, not employee. Outside the scope of employment. Feres. Failure to present — jurisdictional in most circuits. Untimeliness, though tollable. The judgment bar. And every state-law defense that would be available to a private defendant, including comparative fault and state damages caps.
What the claim pays
Compensatory damages, measured by the law of the place where the act occurred — including that state's caps on damages.
No punitive damages. No jury trial — FTCA cases are tried to the bench. No prejudgment interest.
Damages are generally capped at the amount stated in your administrative claim, absent newly discovered evidence or intervening facts. Put a number on the Form 95 that reflects the worst plausible outcome, because you will rarely be allowed to exceed it.
Attorney's fees are not shifted to the government. They come out of the plaintiff's own award, and they are capped by statute: 25% of a judgment or post-filing settlement, 20% of an administrative settlement. Charging more is a criminal offense.
What people get wrong
"I'll get a jury and punitive damages against the government." Neither. Bench trial, compensatory only.
"I'll sue the employee who hurt me." The Westfall Act substitutes the United States for scope-of-employment torts.
"Presentment is a formality I can fix after filing." In most circuits it is jurisdictional and uncurable — though the Sixth Circuit has questioned that as to the sum-certain element.
"The two-year deadline can never be tolled." It can, after Kwai Fun Wong. Do not confuse that with presentment.
"Federal law decides whether they were negligent." No. State law does — the law of the place where it happened.
"The government is liable for anything its contractors do." Independent contractors are not employees.
"If it was a bad decision, the discretionary function exception can't apply." It can. The exception protects the judgment, not its quality.
Where it came from
Before 1946, someone injured by the federal government's negligence had one realistic option: persuade Congress to pass a private bill compensating them personally. The FTCA replaced that with a general waiver, and the exceptions were the price of getting it enacted.
Congress overrode the Supreme Court here in 1988. After a decision that had narrowed the immunity of federal employees and exposed them to personal tort liability, Congress passed the Westfall Act, making the FTCA the exclusive remedy for scope-of-employment torts and providing for substitution of the United States. That is why the employee is never the defendant today.
The modern trend has been to tighten the timing rules in claimants' favour — Kwai Fun Wong on tolling — while the exceptions, particularly discretionary function, have stayed broad.
Common questions
Do I have to file a claim with the agency before suing the federal government?
Yes. You must present a written claim, including a specific dollar amount, to the appropriate agency before filing suit. Most circuits treat this as jurisdictional, meaning it cannot be cured after you file.
How long do I have to bring an FTCA claim?
Two years from when the claim accrued to present it to the agency, then six months from the agency's written denial to file suit. Both periods can be equitably tolled.
Can I get a jury trial or punitive damages against the United States?
No to both. FTCA cases are tried to a judge, and punitive damages are barred by statute. Prejudgment interest is also unavailable.
Can I sue the individual federal employee who injured me?
No, for conduct within the scope of employment. Once the Attorney General certifies scope, the United States is substituted as the only defendant.
What is the discretionary function exception?
It withdraws the government's consent to be sued for conduct involving a judgment or choice that is susceptible to policy analysis. It is the most common reason FTCA claims are dismissed, and it applies regardless of whether the judgment was a good one.