Tort Litigation in the U.S.: Federal Claims and Representation

Overview of federal tort litigation, claims handling, and representation processes

Tort litigation against the Federal Government in the United States operates under the general supervision of the Civil Division’s Torts Branch, which manages all litigation matters involving tort claims against the government. The Torts Branch is composed of four specialized staffs—Aviation and Admiralty, Constitutional and Specialized Torts, Environmental Torts, and the Federal Tort Claims Act (FTCA) Staff—each responsible for a specific category of tort cases. Contact information for these offices is available in the Civil Division’s internal resource “Expertise in the Civil Division,” which is routinely updated.

The Aviation and Admiralty Staff addresses claims resulting from aviation and maritime accidents, covering the government’s responsibilities as owner and regulator of aircraft and vessels, as well as its role in managing air traffic and the nation’s waterways. The Constitutional and Specialized Torts Staff focuses on three primary functions: representing federal employees sued for actions taken within the scope of their employment, defending the Secretary of Health and Human Services in matters under the Vaccine Injury Compensation Program, and adjudicating claims under the Radiation Exposure Compensation Program. The Environmental Torts Staff deals with property and personal injury claims linked to toxic exposure in government settings, including contamination and workplace hazards. The FTCA Staff manages all other tort matters, including conventional personal injury and property damage claims against the government.

Although each staff is responsible for distinct types of cases, many defenses and legal principles under the FTCA apply broadly across categories. Cases often present overlapping claims, such as a combination of constitutional and general tort claims. Some tort cases may also involve related contract issues, requiring coordination between the Torts Branch and other components of the Civil Division or even other divisions of the Department of Justice.

In managing settlements under the FTCA, United States Attorneys are delegated authority to settle cases up to $1 million, as outlined in Civil Directive No. 1-15 and 28 C.F.R. Part O, Subpart Y, Appendix. Settlements exceeding this limit require submission of a detailed justification to the Torts Branch for review and recommendation by the responsible Director to the Assistant Attorney General or, for settlements exceeding $4 million, to the Associate Attorney General. While the Torts Branch endeavors to review proposals expeditiously, counsel and the court should be informed that immediate approval cannot always be guaranteed.

United States Attorneys are encouraged to consult the Torts Branch during settlement negotiations, particularly when concerns arise about the advisability or structure of a proposed settlement. Before negotiations begin, the Director of the Torts Branch provides guidance on acceptable settlement amounts and terms. Special care is required when structured settlements are involved, particularly those utilizing the U.S. Grantor Reversionary Medical Care Trust. When such settlements are proposed, the Assistant United States Attorney must use a broker from the Attorney General’s approved list of structured settlement brokers, ensuring that the government—not opposing counsel—controls the selection process. The FTCA Staff provides assistance on structured settlement terms, reversionary trusts, and trustee selection. In settlements involving reversionary trusts or annuities, the agreement must specify that reversionary payments be made to the appropriate funding source and sent to the Director of the FTCA Staff. All settlement memoranda beyond the authority of the U.S. Attorney, or those involving reversionary structures, must be submitted to the FTCA Staff. Stipulations or admissions equivalent to a finding of liability also require approval from the appropriate authority level, based on the highest reasonably foreseeable judgment amount.

Within the Constitutional and Specialized Torts area, the Constitutional Torts Staff represents federal employees sued in their personal capacity for actions taken within the scope of their federal duties. This representation, authorized under 28 U.S.C. §§ 516–519, ensures that the interests of the United States are protected when individual employees face litigation risks. Policies governing such representation are detailed in 28 C.F.R. §§ 50.15 and 50.16, which prohibit Department attorneys from representing employees personally unless proper approval is granted. Department counsel may, however, request extensions to preserve deadlines while representation decisions are pending.

Most representation requests are processed by the Constitutional Torts Staff, and agency counsel must forward all necessary materials under 28 C.F.R. § 50.15(a)(1)–(2) to doj.representation@usdoj.gov. Federal employees can receive representation if the actions giving rise to a lawsuit, subpoena, or charge appear to fall within the scope of employment and if representation serves the interests of the United States. Representation may also be granted in administrative proceedings involving professional license revocation related to official duties. Conversely, representation is generally unavailable in federal criminal investigations or cases involving criminal allegations related to the conduct at issue, although private counsel may sometimes be provided at federal expense.

Requests for representation must be submitted in writing through the employee’s agency, typically to its Office of General Counsel, which forwards the request to the Constitutional Torts Staff with a recommendation on whether the criteria of scope and interest are met. Urgent requests may be emailed directly to the Constitutional Torts Staff, followed by a call to the Director. Once representation is approved, the litigating attorney provides the employee with Form 399, which outlines the scope and limits of Department representation. If the Solicitor General declines to authorize an appeal or representation would conflict with the government’s position, the Department must withdraw unless the employee waives the conflict. In appropriate cases, private counsel may be retained at government expense under 28 C.F.R. §§ 50.15 and 50.16.

A federal employee remains personally liable for any judgment entered solely against them, though the Attorney General may authorize indemnification in limited circumstances under 28 C.F.R. § 50.15(c). Pre-judgment indemnification is rarely granted. When conflicts prevent representation by a single government attorney, or when direct representation would be inappropriate, private counsel may be appointed, subject to Civil Division Administrative Directive 2120B.

Immunity issues in constitutional tort litigation carry significant procedural consequences. District court orders denying immunity—absolute or qualified—are immediately appealable if they rest on questions of law. This principle, grounded in cases such as Mitchell v. Forsyth, Nixon v. Fitzgerald, and Behrens v. Pelletier, reflects the policy that immunity protects officials not only from liability but from the burdens of litigation itself. Because immunity provides “immunity from suit,” its denial is considered a “collateral order” that may be appealed immediately under 28 U.S.C. § 1291. The notice of appeal must be filed within 60 days when the United States or a federal employee is a party, as required by Federal Rule of Appellate Procedure 4(a)(1)(B). The Constitutional Torts Staff and the Civil Division’s Appellate Staff should be consulted promptly to determine whether an appeal should be noticed before the Solicitor General’s formal authorization, as plaintiffs may seek dismissal for lack of jurisdiction under Johnson v. Jones.

The Environmental Torts Staff represents the United States in toxic tort litigation, including claims involving contamination, hazardous exposure, and environmental injury under the FTCA and related statutes. This includes cases involving groundwater pollution, airborne contaminants, radiation exposure, herbicide damage, mold, lead paint, carbon monoxide, asbestos, and other environmental or workplace toxins. The Staff also defends against third-party indemnity and contribution claims filed by private contractors or suppliers. Many cases arise from military operations, but others stem from the activities of civilian agencies. The Environmental Torts Staff handles litigation in both the U.S. District Courts and the Court of Federal Claims, with responsibility for negligence claims involving the Environmental Protection Agency’s cleanup operations. Pollution-related vessel cases, however, are handled by the Aviation and Admiralty Staff.

Together, these four specialized units of the Torts Branch ensure consistent, expert management of all tort-related litigation involving the United States. Through structured procedures for representation, settlement, and appeals, the Torts Branch upholds both the integrity of the federal government’s legal responsibilities and the protection of individual federal employees acting within the scope of their official duties.

21st October 2025