Federal Tort Claims Act (FTCA) Guide and Sovereign Immunity Waiver
Until the Federal Tort Claims Act was enacted in 1946, no general remedy existed for torts committed by federal agency employees in America
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.
A plaintiff cannot opt for a jury in an FTCA action, and the proper defendant in an FTCA claim is the United States.
Black’s Law Dictionary (11th ed. 2019) defining “tort” as “a civil wrong, other than breach of contract, for which a remedy may be obtained, usu[ally] in the form of [monetary] damages” Enacted in 1946, the Federal Tort Claims Act (FTCA) represents a limited waiver of the federal government’s sovereign immunity, allowing plaintiffs to file and prosecute certain types of tort lawsuits against the United States in federal court to recover financial compensation. The scope of these cases is broad, ranging from the relatively mundane, such as a civilian suing for injuries from a minor accident on federal property, to cases involving grave allegations of government misfeasance. For example, women allegedly assaulted by naval officers at the 1991 Tailhook Convention invoked the FTCA in an attempt to hold the United States liable. Similarly, family members of those killed in the 1993 Branch Davidian compound fire in Waco sued under the FTCA, asserting that federal law enforcement agents committed negligent acts resulting in deaths. In another significant case, the U.S. Court of Appeals for the First Circuit affirmed an award of over $100 million against the United States for “egregious government misconduct” by the FBI that led to the wrongful incarceration of several men falsely accused of a gangland slaying.
The district courts, together with the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions against the United States 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. The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States and the District Court of the Virgin Islands. A litigant aggrieved by the U.S. Court of Appeals’ ruling in an FTCA case may then request that the U.S. Supreme Court exercise its discretionary authority to review the case. Cases in the courts of appeals may be reviewed by the Supreme Court . . . [b]y writ of certiorari granted upon the petition of any party to any civil case after rendition of judgment.
This power to sue the United States ensures that persons injured by federal employees can seek compensation and justice. However, waiving the government’s immunity from tort litigation comes at a significant cost. The U.S. Department of the Treasury’s Bureau of the Fiscal Service reports that the United States spends hundreds of millions of dollars annually on FTCA tort claims, and the Department of Justice handles thousands of such claims each year. Furthermore, exposing the United States to tort liability creates a risk that government officials might base decisions on a desire to reduce the government’s potential civil liability rather than on relevant policy objectives.
To balance these competing considerations, the FTCA limits the circumstances under which a plaintiff can successfully obtain damages from the United States. It categorically bars certain types of tort lawsuits, restricts the types and amount of monetary damages recoverable, and requires plaintiffs to comply with an array of procedural requirements before filing suit. This report provides an overview of the FTCA, discussing the events and policy concerns that led to its enactment, including the background principle of sovereign immunity. It explains the effect, scope, and operation of the FTCA’s waiver, describing categorical exceptions to this waiver, statutory limitations on recovering damages, and the procedures governing tort claims against the United States, concluding with a discussion of legislative proposals to amend the FTCA.
Background
A person injured by the tortious activity of a federal employee generally has two potential defendants: the employee themselves or the federal government. However, suing the employee is often not viable. The USA Congress has shielded federal officers and employees from personal liability for torts committed within the scope of their employment. Even without this protection, individual defendants may lack the financial resources to satisfy a damages award. This legal and practical unavailability makes suing the United States a more attractive option, as it possesses sufficient resources to pay judgments.
A significant obstacle to suing the government is the doctrine of sovereign immunity, which bars lawsuits against a sovereign entity, like the federal government, unless it consents. For much of USA history, this doctrine barred citizens injured by federal employees’ torts from suing the United States. Until 1946, the only recourse was to ask Congress for a private bill affording relief. This system was criticized for burdening Congress and being perceived as unjust and prone to political favoritism.
The FTCA, enacted in 1946, effectuated a limited waiver of sovereign immunity for certain common law tort claims. With exceptions, it authorizes civil lawsuits exclusively in federal court if the claims are:
(1) against the United States; (2) for money damages; (3) for injury to or loss of property, or personal injury or death; (4) caused by a federal employee’s negligent or wrongful act or omission; (5) while acting within the scope of office or employment; and (6) under circumstances where the United States, if a private person, would be liable under the law of the place where the act or omission occurred.
The FTCA transferred responsibility for deciding disputed tort claims from Congress to the courts, freeing Congress from private relief petitions and creating a mechanism to compensate victims of governmental wrongdoing. It also aims to deter tortious conduct by federal personnel by holding the United States liable for its agents’ torts, incentivizing careful employee supervision.
The FTCA does not create a new federal cause of action; it waives sovereign immunity for claims that exist under state tort law. Thus, the substantive law of the state where the tort occurred generally determines the liability of the United States, rendering the government liable in tort as a private individual would be under like circumstances. However, the waiver is not complete. To address concerns about the public fisc, government operations, and the potential impact on officials’ duties, the FTCA affords the United States protections not enjoyed by private defendants. Furthermore, Congress vested federal district courts (and some territorial courts) with exclusive jurisdiction over FTCA cases, and these cases are generally tried by the court without a jury, as Congress believed juries might be influenced by the government’s “deeper pocket.”
The Preclusion of Individual Employee Tort Liability Under the FTCA
The FTCA authorizes tort lawsuits only against the United States itself; it expressly shields individual federal employees from personal liability for torts committed within the scope of their employment. The remedy against the United States is exclusive of any other civil action for money damages against the employee whose act gave rise to the claim. Since the late 1980s, Congress has prohibited courts from holding federal employees personally liable for scope-of-employment torts to avert a crisis of personal liability and protracted litigation for the federal workforce. The employee generally remains immune even if an FTCA provision forecloses recovery from the United States.
Determining whether the FTCA governs a case requires answering two threshold questions: (1) whether the tortfeasor was a federal employee, and (2) whether they committed the tort within the scope of their office or employment.
Employees and Independent Contractors
The FTCA only waives sovereign immunity for torts committed by an “employee of the Government.” A claim against the government for a tort by a non-employee will fail. The FTCA defines “employee of the government” to include officers or employees of any federal agency, members of the military or naval forces, National Guard members in training or duty under certain federal laws, persons acting on behalf of a federal agency in an official capacity, and officers and employees of a federal public defender organization (except when providing legal services to clients).
This broad definition means the FTCA applies to some who might not be considered employees in common parlance. However, the FTCA’s shield against personal liability does not protect non-employees. A plaintiff injured by a non-employee may potentially sue that individual under state tort law, even though they could not sue the United States or federal employees under the FTCA.
A key distinction involves independent contractors. The FTCA explicitly excludes independent contractors from the definition of “employee.” Thus, the government cannot be held liable for torts committed by its independent contractors; the plaintiff must seek compensation from the contractor itself. Courts often must determine whether an alleged tortfeasor is an employee or an independent contractor. Most courts hold that the critical factor is whether the federal government has the authority to control the detailed physical performance of the contractor. A contractor is an employee only if the government can supervise day-to-day operations and control detailed physical performance.
For example, courts typically find that certified registered nurse anesthetists (CRNAs) working at federal hospitals are employees because they operate under the direct supervision and control of a government surgeon or anesthesiologist. In contrast, physicians providing services at federal facilities are generally considered independent contractors because they often operate independently of government control.
The Boyle Rule
Because the FTCA does not insulate independent contractors from liability, a plaintiff injured by a contractor may potentially recover from that contractor. However, under the Supreme Court’s 1988 decision in Boyle v. United Technologies Corp., a plaintiff may not pursue state law tort claims against a government contractor if imposing liability would create a significant conflict with an identifiable federal policy or interest or frustrate specific objectives of federal legislation. Courts have thus rejected tort claims against defense contractors that could interfere with military objectives but have been less willing to extend Boyle immunity to non-military contractors. For Boyle to apply, the government must have mandated the contractor’s action that allegedly violated state law.
Scope of Employment
The FTCA applies only to torts committed by a federal employee “while acting within the scope of his office or employment.” This is a threshold requirement. If an employee acts outside the scope of employment, an FTCA action will not lie, and the plaintiff may potentially file a state-law tort action against the employee. Courts usually determine scope of employment by applying the law of the state where the tort occurred. While principles vary by state, many consider whether the employee was performing the type of act they were hired to do and whether the act was intended to promote the employer’s interests. An illegal or wrongful act does not necessarily mean the employee acted outside the scope of employment.
Illustrative cases include Barry v. Stevenson, where a soldier driving a government-owned Humvee on a military base to return to headquarters after a work assignment was found acting within the scope of employment when an accident injured a passenger. In contrast, in Merlonghi v. United States, a special agent who collided with a motorcyclist while driving home from work in a government vehicle after a personal altercation was found not acting within the scope of employment. The court noted he was not performing his job duties, responding to an emergency, or motivated by a purpose to serve his employer.
A plaintiff may prefer to litigate against the United States rather than an individual employee, especially if the employee lacks sufficient assets to satisfy a judgment. Thus, plaintiffs often do not object when the Attorney General certifies that named defendants were acting within the scope of their employment. If unchallenged, this certification is conclusive. If the United States is held liable based on an employee’s tortious conduct, it cannot sue the employee to recover the amount paid. This effectively relieves the employee from civil liability. If the Attorney General refuses to certify scope of employment, the employee may petition the court for such a certification. If the court agrees, the case proceeds against the government; if not, the lawsuit may proceed against the employee personally.
Exceptions to the FTCA’s Waiver of Sovereign Immunity
The FTCA imposes substantive limitations on the types of tort lawsuits permissible against the United States. Concerned about judicial intrusion into governmental operations and policymaking, Congress preserved sovereign immunity for over a dozen categories of claims listed in Section 2680 of the FTCA. These include claims based on the exercise of a discretionary function, claims arising from postal losses, certain admiralty claims, claims arising from quarantines, intentional torts, claims from fiscal operations, claims arising from combatant activities during war, claims arising in a foreign country, and claims arising from the activities of specific entities like the Tennessee Valley Authority. If a claim falls within an exception, the court lacks jurisdiction to adjudicate it.
The Discretionary Function Exception
Section 2680(a), the discretionary function exception, preserves immunity when an employee’s acts involve the exercise of judgment or choice. It is one of the most frequently litigated and broadest exceptions. The exception prevents judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political policy and protects the government from liability that could handicap efficient operations. It marks the boundary between Congress’s willingness to impose tort liability and its desire to protect certain governmental activities.
Courts use a two-prong test: (1) whether the conduct was discretionary, and (2) whether it was policy-driven. If both are satisfied, the exception applies, and the claim fails.
For the first prong, conduct is discretionary if it involves an element of judgment or choice. It is not discretionary if a federal statute, regulation, or policy specifically prescribes a course of action, leaving no rightful option but to adhere. Even if a law exists, it may still be discretionary if it uses permissive rather than mandatory language, requiring judgment calls. The presence of a few mandatory provisions does not transform suggestive guidelines into binding law.
In Rich v. United States, an inmate stabbed by gang members sued, alleging the Bureau of Prisons should have separated him. Federal law permitted but did not require separation, giving officials discretion; thus, the exception applied. Conversely, in Berkovitz ex rel. Berkovitz v. United States, the government was not shielded because a specific directive required receiving test data before licensing a vaccine; there was no discretion.
Courts disagree on whether the exception shields conduct allegedly violating the Constitution. Most hold it does not, as the government has no discretion to violate the Constitution. A minority hold that it does shield discretionary acts even if constitutionally repugnant, based on the text of the statute.
For the second prong, if conduct is discretionary, the court assesses whether the exercise of discretion is influenced by policy considerations—that is, whether it implicates social, economic, or policy judgments. The standard is objective; the court does not examine whether policy was actually contemplated, only whether the decision is susceptible to policy analysis. The exception applies even if discretion was exercised erroneously or negligently, and it applies to low-level and high-level officials alike.
If the first prong is satisfied, courts presume the second is satisfied, but a plaintiff can rebut this by showing the actions are not grounded in the policy of the regulatory regime.
In Rich, prisoner placement was deemed inherently policy-laden, involving resources, classification, and security. In contrast, decisions motivated by laziness or careless inattention, like an inspector taking a smoke break instead of inspecting, or allowing toxic mold on food, are not influenced by policy and are not shielded.
The Intentional Tort Exception
The intentional tort exception preserves immunity for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. This list does not remove all intentional torts, and some listed torts may arise from negligent conduct, so the moniker “intentional tort exception” is not entirely accurate. The legislative history is scant, but some in Congress believed it unjust to hold the government liable for employees’ intentional torts and dangerous to expose the public fisc to such claims, which are easy to exaggerate and hard to defend.
This exception has shielded the United States from serious misconduct, such as in the Tailhook case, where alleged sexual assaults by naval officers were barred as intentional torts.
The Exception to the Intentional Tort Exception: The Law Enforcement Proviso
A carveout known as the “law enforcement proviso” renders the United States potentially liable for specific intentional torts—assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution—committed by federal investigative or law enforcement officers. Congress added this in 1974 in response to abuses of power by federal law enforcement. An “investigative or law enforcement officer” is defined as any U.S. officer empowered by law to execute searches, seize evidence, or make arrests for federal law violations. Courts may also use definitions from the time of the 1974 amendments.
For example, Customs and Border Patrol officers qualify, but Treasury Department training center employees with supervisory duties may not. Courts disagree on some officials; one appellate court held Transportation Security Officers (TSOs) qualify because they search luggage and passengers, while another court, emphasizing TSOs’ lack of arrest or warrant powers, held they do not.
The proviso waives immunity only for acts committed while the officer is acting within the scope of office or employment. The tort need not arise during a search, seizure, or arrest. The Supreme Court has held that a federal prisoner’s claim of sexual assault by correctional officers could fall under the proviso if the officers were law enforcement officers acting within the scope of employment, even if not engaged in specific law enforcement activity during the assault.
The Foreign Country Exception
The foreign country exception bars “any claim arising in a foreign country.” The USA Supreme Court has interpreted this to bar all claims based on injury suffered in a foreign country, regardless of where the tortious act occurred. Conduct on an American military base in a foreign country routinely falls within the exception. It ensures the United States is not exposed to excessive liability under foreign laws.
In S.H. ex rel. Holt v. United States, a family sued after USAF officials in California approved travel to a base in Spain with substandard medical facilities, leading to a premature birth and injury. The court held the injury arose in Spain, barring the claim, even though the child’s cerebral palsy was diagnosed in the U.S., as the harm first impinged on the body in Spain.
The Military Exceptions
Two exceptions relate to military activities: the statutory combatant activities exception and the judge-made Feres doctrine.
The combatant activities exception, 28 U.S.C. § 2680(j), preserves immunity for claims “arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” Its purpose is to preempt state or foreign regulation of wartime conduct and free commanders from the uncertainty of civil suit. In Clark v. United States, a sergeant exposed to toxins in Saudi Arabia during Operation Desert Storm sued after his child was born with defects. The court held the claim arose from wartime activities and was barred. In Badilla v. Midwest Air Traffic Control Service, Inc., the estate of a civilian flight crew that crashed in Afghanistan sued a military subcontractor for negligent air traffic control. The court held the exception did not apply because the military did not authorize the controller’s decision to cancel the flight’s landing clearance.
The Feres doctrine, from Feres v. United States (1950), holds that the government is not liable under the FTCA for injuries to servicemembers that arise out of or are in the course of activity incident to service. It applies broadly to injuries remotely related to military status, such as medical malpractice by military doctors. The doctrine is justified to avoid disrupting military discipline and hierarchy, as courts should not be involved in sensitive military affairs. The USA Supreme Court also noted the existence of a uniform system for compensating servicemembers. Despite debate and opportunities to overturn it, the Supreme Court has reaffirmed and expanded the doctrine. USA Congress has not abrogated it, though the 2022 Camp Lejeune Justice Act allows individuals, including veterans, exposed to contaminated water at Camp Lejeune to sue for harm. Additionally, in 2022, the Ninth Circuit ruled that the Feres doctrine did not bar a suit by a former servicemember for a sexual assault that occurred on active duty, stating the assault could not be considered incident to service.
Other Limitations on Damages Under the FTCA
Beyond exceptions to waiver, the FTCA limits compensation in other ways. While damages are generally determined by state law, the FTCA imposes restrictions. Plaintiffs generally cannot recover punitive damages or prejudgment interest against the United States, and most awards of attorney’s fees are barred. With limited exceptions, a plaintiff cannot recover damages exceeding the amount initially requested in the administrative claim, as this requirement puts the government on notice of its potential liability for settlement purposes. However, a plaintiff can recover more if they demonstrate “intervening facts” or “newly discovered evidence” not reasonably discoverable when the claim was presented.
Procedural Requirements
The FTCA establishes procedural requirements, most significantly statute-of-limitations and exhaustion provisions.
A plaintiff cannot sue the United States under the FTCA unless they have first presented the claim to the appropriate federal agency and that agency has finally denied it. This administrative exhaustion requirement allows agencies to settle disputes before litigation, reducing court congestion and avoiding unnecessary litigation, benefiting claimants by avoiding expense and freeing government resources.
A claimant generally has two years from the date of injury to present a written claim to the relevant agency, with sufficient description of the injury to enable investigation. The agency may then settle or deny the claim. Failure to submit a claim within two years usually time-bars the lawsuit. A plaintiff cannot file suit and then cure a failure to exhaust by belatedly submitting a claim.
If the agency settles, no litigation occurs, and statistics show most claims are resolved administratively. If not settled, the agency denies the claim by certified or registered mail. The claimant then has six months from the mailing date to file suit in federal court. If not filed within this period, the claim is forever barred.
If an agency does not make a final disposition within six months, the claimant may, at their option, deem this a final denial and file suit, a mechanism for constructive exhaustion.
Operating alongside the FTCA is the judgment bar statute, which states that a judgment in an FTCA action constitutes a complete bar to any action by the claimant against the government employee whose act gave rise to the claim. In Brownback v. King (2021), the Supreme Court held that a dismissal of an FTCA claim for lack of subject-matter jurisdiction could simultaneously be a judgment on the merits that triggers the judgment bar, precluding a related Bivens constitutional claim against the federal officers involved.
Case Laws
In Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), the court held that when private contractors are deeply integrated into the military structure during combat operations, allowing tort suits against them would hinder military flexibility and lead to intrusive judicial inquiries into wartime policy decisions. Similarly, in Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), the court ruled that federal law preempted claims against private companies involved in constructing a military air defense system, emphasizing deference to federal wartime decisions. However, in Harris v. Kellogg Brown & Root Services, Inc., 724 F.3d 458 (3d Cir. 2013), the court permitted a claim against a defense contractor to proceed because the military did not exercise command authority over the contractor. Likewise, in In re Hanford Nuclear Reservation Litigation, 534 F.3d 986 (9th Cir. 2008), the court found that the federal statute governing liability for nuclear accidents prevented the contractor from invoking the Boyle defense, rejecting immunity for conduct outside federal control.
In Folley v. Henderson, 175 F. Supp. 2d 1007 (S.D. Ohio 2001), the court stressed that the FTCA does not apply if a federal employee acts outside the scope of employment. In such cases, courts lack jurisdiction over vicarious liability claims against the United States, as illustrated in Zeranti v. United States, 167 F. Supp. 3d 465 (W.D.N.Y. 2016). Other courts, including Dowdy v. Hercules, 2010 WL 169624 (E.D.N.Y. Jan. 15, 2010), and Moreland v. Barrette, 2007 WL 2480235 (D. Ariz. Aug. 28, 2007), have held that claims against individual employees for actions outside their federal duties face no sovereign immunity barriers because the FTCA does not extend to such conduct.
Federal courts apply the law of the state where the tort occurred to determine whether an employee acted within the scope of employment, as reaffirmed in M.D.C.G. v. United States, 956 F.3d 762 (5th Cir. 2020); Fountain v. Karim, 838 F.3d 129 (2d Cir. 2016); and Johnson v. United States, 534 F.3d 958 (8th Cir. 2008). An exception arises when the wrongful conduct occurs abroad, where courts often apply District of Columbia law instead, as seen in Doe v. Meron, 929 F.3d 153 (4th Cir. 2019).
The precise meaning of “scope of employment” varies by jurisdiction. For example, Johnson identified several factors under South Dakota law, such as whether the act was commonly performed in the course of business, its time, place, and purpose, and whether it was similar to authorized acts. By contrast, Rodriguez v. Sarabyn, 129 F.3d 760 (5th Cir. 1997), applied Texas law, finding that an employee acts within scope if the act is within general authority, furthers the employer’s business, and aims to accomplish the employer’s objectives. Scholarly commentary, such as Paula Dalley’s Destroying the Scope of Employment (55 Washburn L.J. 637 (2016)), underscores that state laws differ significantly on this question.
In Merlonghi v. United States, 620 F.3d 50 (1st Cir. 2010), the court followed Massachusetts law, holding that conduct falls within the scope of employment if it is the kind of act the employee is hired to perform, occurs within authorized time and space limits, and is motivated at least partly by a purpose to serve the employer. Similar standards appear in other states, such as South Carolina in Callaham ex rel. Foster v. United States, 2012 WL 1835366 (D.S.C. May 21, 2012), and Florida in Birke v. United States, 2009 WL 1605771 (E.D. Mo. June 8, 2009), where courts require proof that the employee’s conduct was performed within authorized limits and at least partly intended to benefit the employer.
21st October 2025
