Federal Tort Claims Act

AuthorWilliam Funk - Jeffrey S. Lubbers
28 U.S. Code §§ 1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671–2680
(2012) (originally 28 U.S.C. §§ 921–946); enacted August 2, 1946, as title
IV of the Legislative Reorganization Act of 1946 by Pub. L. No. 79-601, 60
Stat. 812–44; significantly amended July 18, 1966, by Pub. L. No. 89-506,
80 Stat. 306; March 16, 1974, by Pub. L. No. 93-253, 88 Stat. 50; November
18, 1988, by Pub. L. No. 100-694, 102 Stat. 4563–67; November 15, 1990,
by Pub. L. No. 101-552, 104 Stat. 2736; October 29, 1992, by Pub. L. No.
102-572, 106 Stat. 4511; March 29, 1996, by Pub. L. No. 104-121, 110 Stat.
863; April 26, 1996, by Pub. L. No. 104-134, 110 Stat. 1321–75; and Apr.
25, 2000, by Pub. L. No. 106-185, § 3(a), 114 Stat. 211; Oct. 30, 2000, by
Pub. L. No.106-398, § 1 [[div. A], title VI, § 665(b)], 114 Stat. 1654, 1654A–
169; Nov. 13, 2000, by Pub. L. No. 106-518, title IV, § 401, 114 Stat. 2421.
Lead Agency:
Department of Justice, Civil Division, Torts Branch, Tenth Street and
Constitution Avenue NW, Room 3649, Washington, DC 20530, (202) 514-
Before 1946, the doctrine of sovereign immunity obliged almost all vic-
tims of government wrongdoing to seek relief via congressional enactment of
a private bill. The Federal Tort Claims Act (FTCA) waived this defense to
permit damage actions against the United States for injury, loss of property,
or death caused by the negligent or wrongful acts or omissions of federal
employees acting within the scope of their employment. The Act provides
that the United States shall be liable in the same manner and to the same
extent as a private individual under like circumstances in accordance with the
law of the place where the negligent or wrongful conduct occurred.
Administrative Claims. As first drafted, the FTCA sought to transfer to
the federal courts primary responsibility for determining what redress was
warranted, but amendments enacted in 1966 shifted much of that burden to
the agencies. Claims must now be presented to the responsible agency as a
prerequisite for suit (§ 2675(a)). The claim must be presented in writing
within two years after it accrued and the agency has a minimum of six months
in which to act. If the agency fails to make a final disposition of the claim
within that period, the claimant, at anytime thereafter, may treat that as a
denial and file suit.
Agencies may settle claims under the Act in any amount, subject, how-
ever, to prior written approval by the Attorney General or his or her designee
for settlements in excess of a specified level (§ 2672),1 and must exercise
their settlement authority “in accordance with regulations prescribed by the
Attorney General.” These regulations are fairly short, and are set forth in the
As a result of the 1966 amendments, many agencies have established
relatively elaborate procedures for the presentation, investigation, and ad-
ministrative adjustment of tort claims. Today thousands of claims are dis-
posed of at the agency level. Considerable litigation has occurred involving
the statute of limitations and the sufficiency of claimants’ administrative fil-
ings, particularly over agencies’ authority to demand extensive information
substantiating a claim and to regard a claim as invalid for all purposes when
1In 1990, the Administrative Dispute Resolution Act of 1990 amended the
FTCA to encourage agency use of arbitration and other alterative means of dis-
pute resolution to resolve administrative tort claims. That act, discussed above,
also provided that the Department of Justice could raise any agency’s authority to
settle tort claims without prior Department of Justice approval from $25,000 to an
amount not to exceed “the authority delegated by the Attorney General to the
United States attorneys to settle claims for monetary damages against the United
States.” Pursuant to an analogous provision of another law, the Department of
Veterans Affairs previously obtained authority to settle tort claims for up to
$100,000; the 1990 amendment was intended to enable other agencies to obtain
similar authority.
such data are not provided. A widely cited case, Adams v. United States, 615
F.2d 284, on reh., 622 F.2d 197 (5th Cir. 1980), holds that § 2675(a)’s man-
date that a claim be filed initially with the agency requires only that the
claimant place a monetary value on the claim and give sufficient written
notice of the claim to enable the agency to conduct an investigation. Several
prior decisions (e.g., Swift v. United States, 614 F.2d 812 (1st Cir. 1980)) had
required considerably more of claimants. To make the agency-level process
more open and less adversarial, the Administrative Conference in 1984 rec-
ommended a number of changes and called for some amendments to the
FTCA and the Attorney General’s rules (Recommendation 84-7, see Bibliog-
raphy). The Administrative Dispute Resolution Act of 1990 implemented
some of these changes.
Court Claims. If administrative settlement efforts fail, the claimant may
sue either in the federal district court for the district in which the alleged
negligent or wrongful act occurred or where he or she resides (§ 1402(b)),
provided that the administrative claim was properly presented within two
years after it accrued and suit is brought within six months after the agency’s
final denial (§ 2401(b)).2 Suit may be brought only against the United States,
not against the federal agency. The only remedy under the FTCA is money
damages; the Act does not authorize equitable remedies. The sum demanded
in the lawsuit generally cannot exceed the amount of the claim presented to
the agency (§ 2675(b)). Liability and damage standards, in most instances,
are based on the law of the place where the negligent or wrongful act oc-
curred, except that the United States is not liable for punitive damages or
prejudgment interest (§ 2674). Jury trials are not authorized under the FTCA,
and attorneys’ fees are subject to a ceiling of 20 percent of the amount recov-
ered in agency-level settlements and 25 percent of judgments and litigation
settlements (§ 2678).
Coverage. The FTCA contains more than a dozen exceptions (§ 2680).
It does not apply, for example, to the following:
Claims arising in a foreign country;
Claims based upon the performance of a discretionary function;
2However, in 2015, the Supreme Court held that even though the Act (§
2401(b)) states that claims that miss these deadlines “shall be forever barred,
that did not necessarily render these periods jurisdictional in nature, and thus not
subject to equitable tolling. United States v. Wong, 135 S. Ct. 1625, 1634–36
(2015). In so doing, it abrogated the Fifth Circuit’s holding to the contrary, In re
FEMA Trailer Formaldehyde Prods. Liability Litig., 646 F.3d 185 (5th Cir. 2011).

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