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The Federal Tort Claims Act: A Primer

The Federal Tort Claims Act (FTCA) is outlined in various sections of Chapter 28 of the United States Code, which describe the steps necessary to file and maintain a tort action against the U.S. government.

The FTCA is the exclusive remedy for monetary damages for injuries “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.” 28 U.S.C. § 1346(b)(1).

This means that the FTCA is only available to address acts or omissions by federal employees that constitute torts under state law. Constitutional violations are not actionable under the FTCA unless they are also torts. For example, deliberate indifference to serious medical needs, which is a constitutional violation under the Eighth Amendment, may also constitute the torts of medical malpractice or negligence.

The FTCA constitutes a limited waiver of the United States’ sovereign immunity, allowing claimants to sue the federal government; however, the FTCA does not apply to acts by federal employees that are outside the scope of their employment.

FTCA suits should not be confused with § 1983 actions, commonly known as civil rights complaints, which apply to defendants acting under color of state – not federal – law. FTCA claims are also distinguishable from Bivens claims brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which provides a private action for monetary damages against federal officials who commit constitutional violations.

Failure to follow the requirements for FTCA claims may lead to dismissal, with prejudice, at an early stage of the proceeding – thereby preventing any recovery even for serious personal injuries and financial losses.

The most significant hurdles to be cleared to prevent an early dismissal of an FTCA action include the exhaustion of administrative remedies and detailed notice requirements. The FTCA administrative process must be exhausted prior to filing an FTCA complaint, which is subject to dismissal on jurisdictional grounds if the claimant has failed to exhaust such remedies. See: Plyler v. United States, 900 F.2d 41 (4th Cir. 1990). Note that the administrative process, described below, is separate and distinct from the Bureau of Prisons’ grievance procedure, and that filing a grievance (i.e., a Form BP-9) does not satisfy FTCA administrative exhaustion requirements.

FTCA claims involve an administrative process in which notice is presented to a federal agency, then a separate complaint (lawsuit) is filed in federal court if the agency fails to resolve the claim administratively.

According to the FTCA, notices must be written and directed to the appropriate federal agency that the claimant asserts is responsible for wrongdoing. U.S.C. § 2675(a). The notice must provide the agency with sufficient information so it can carry out an investigation to ascertain its potential liability. The usual form of notice is Standard Form 95 (SF-95), but claimants are not required to use that form.

The written notice does not have to assert all elements of the cause of action (i.e., all of the legal requirements for stating a claim), but a claimant’s suit may be brought only on those facts and theories of liability raised in the administrative notice. See: Williams v. United States, 932 F.Supp. 357 (D.D.C. 1996). In other words, a claimant should err on the side of caution by including all facts and supporting information in the notice, to avoid possible dismissal of the complaint if the agency fails to settle the matter administratively. See: Bembenista v. United States, 866 F.2d 493 (D.C. Cir. 1989).

Claimants also must request a sum certain, and their potential for recovery will be limited to no more than the amount requested. 28 C.F.R. § 14.2(a). “Failure to have specified a sum certain at the administrative stage is a defect that deprives the court of subject matter jurisdiction over the action.” See: Ahmed v. United States, 30 F.2d 514 (4th Cir. 1994); Kokotis v. U.S. Postal Service, 223 F.3d 275 (4th Cir. 2000); 28 U.S.C. § 2675(b). A sum certain means a specified dollar amount.

Claimants under the FTCA must sign their notices or have them signed by their attorneys or legal representatives. If someone signs in their representative capacity, “evidence of the representative’s authority to sign ... must be shown.” 28 C.F.R. § 14.3(e); Kanar v. United States, 118 F.3d 527 (11th Cir. 1997). For example, if the representative has a prisoner’s power of attorney, a copy of the notarized power of attorney should be submitted with the notice. Failure to do so may result in dismissal of the claim, though some circuits are split on that issue.

The claimant must present written notice of the claim to the correct federal agency, such as on SF-95, and obtain proof that it was presented. 28 U.S.C. § 2675(a). Written notice is effective on the date it is received by the agency, not the date of mailing. 28 C.F.R. § 14.2(a). The claimant should attempt to ascertain the correct agency whose employees’ acts or omissions were the proximate cause of his injuries, and submit the notice to that agency. However, if the claimant inadvertently notices the wrong agency, the agency that received the notice “must transfer the claim forthwith to the appropriate agency and notify the claimant of the transfer.” 28 C.F.R. § 14.2(b)(1).

Further, the claimant bears the burden of presenting written notice of his claim prior to the expiration of the statute of limitations. FTCA claims will be barred if they are not presented in writing to the correct federal agency within two years of the accrual of the claimant’s cause of action. 28 U.S.C. § 2401(b).

After the presentation of notice of the claim, the claimant cannot file an FTCA complaint in federal court until the agency receiving the notice has had the claim for six months, and the federal court lacks subject matter jurisdiction until the six-month period has expired or the agency has issued a final denial of the claim. See: McNeil v. United States, 113 S.Ct. 1980 (1993). If the agency denies the claim, the claimant must file a complaint in federal court within six months of the date of the denial.

With respect to venue for filing FTCA complaints, the proper venue is the district where the claimant resides or where the act or omission occurred. 28 U.S.C. § 1402(b). The substantive law of the state in which the act or omission occurred is the controlling authority for FTCA claims, and the government’s liability is “in the same manner and to the same extent as a private individual under like circumstances....” 28 U.S.C. § 1346(b), 28 U.S.C. § 2674. In some cases, state law presuit notice or expert report requirements may apply, such as in medical malpractice or negligence cases.

If state law does not permit recovery for certain types of tort claims, an FTCA complaint filed in that jurisdiction likewise will be barred from recovery. Further, South Carolina attorney Joe Griffith has noted that district courts are increasingly enforcing state-imposed damages caps in FTCA cases.

When filing an FTCA complaint, the complaint and summons are served on both the Attorney General in Washington, D.C. and the U.S. Attorney’s Office for the district in which the lawsuit is filed.

FTCA trials are held before a district court judge, not a jury; relief may only take the form of monetary damages, and equitable relief is not available. Damages may not exceed the sum certain specified in the administrative claim unless “the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency.” See: 28 U.S.C. § 2675(b); Cole v. United States, 861 F.2d 1261 (11th Cir. 1988). Punitive damages and prejudgment interest are not allowable under the FTCA. 28 U.S.C. § 2674.

The United States – not federal departments, agencies or individual employees – is the only proper defendant in an FTCA claim. 28 U.S.C. § 2679. The alleged tortfeasor must be a federal employee acting within the course and scope of his or her federal employment, and must not be an independent contractor. 28 U.S.C. § 1346(b)(1), 2675, 2672, 2679 and 2671. Thus, for example, federal prisoners held at a facility operated by a private contractor, such as CCA or GEO Group, cannot file an FTCA claim against the company or its employees, as they are not federal employees.

The Supreme Court has held that a suit against the United States under the FTCA is the exclusive remedy for claims arising from medical treatment and related functions provided by Public Health Service (PHS) employees acting within the scope of their employment. See: Hui v. Castaneda, 559 U.S. 799 (2010) [PLN, Oct. 2010, p.44]. PHS employees provide medical care in some Bureau of Prisons and immigration detention facilities.

Further, compensation from the Federal Prison Industries Fund (18 U.S.C. § 4126) is the exclusive source of compensation available for an injury sustained by a prisoner in connection with work activities at a federal prison. See: Vander v. U.S. Dept. of Justice, 268 F.3d 661 (9th Cir. 2001).

FTCA claims concerning government policy decisions are barred by the discretionary function exception – i.e., acts or omissions of federal employees related to a “discretionary function or duty” – as are certain intentional torts. In general, only claims of negligence are covered by the FTCA rather than intentional misconduct. The discretionary function exception applies even when decisions are intentionally or negligently made, or the discretion is abused. See: United States v. Gaubert, 499 U.S. 315 (1911).

However, the intentional acts or omissions of an “investigative or law enforcement officer,” including but not limited to assault, battery, false arrest, false imprisonment, abuse of process and malicious prosecution, are covered by the FTCA and may proceed. 28 U.S.C. § 2680(h); Millbrook v. United States, 133 S.Ct. 1441 (2013) (involving FTCA claims against Bureau of Prisons employees) [PLN, June 2013, p.28].

Lastly, attorneys are prohibited from receiving fees in FTCA cases that exceed 20% of an administrative settlement or 25% of a judgment or compromise settlement after a complaint is filed. 28 U.S.C. § 2678.

Editor’s Note: This article provides a brief introduction to the FTCA and FTCA claims. As the law is constantly changing, claimants who plan to file FTCA claims or complaints should research the most recent case law related to such actions. Special thanks to attorney John Boston for reviewing this article.

Sources: “The Basics of the Federal Tort Claims Act,” by Joseph P. Griffith, Esq. (;;;;

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