The Federal Tort Claims Act (FTCA): A Legal Overview
Congressional research reportApr 17, 2023
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The Federal Tort Claims Act (FTCA):
A Legal Overview
Updated April 17, 2023
Congressional Research Service
https://crsreports.congress.gov
R45732
SUMMARY
The Federal Tort Claims Act (FTCA):
A Legal Overview
A plaintiff injured by a defendant’s wrongful act may file a tort lawsuit to recover money from
that defendant. To name a particularly familiar example of a tort, a person who negligently
causes a vehicular collision may be liable to the victim of that crash. By compelling people who
wrongfully injure others to pay money to their victims, the tort system serves at least two
functions: (1) deterring people from harming others and (2) compensating those who are injured.
R45732
April 17, 2023
Michael D. Contino
Legislative Attorney
Andreas Kuersten
Legislative Attorney
For a substantial portion of this nation’s history, however, the doctrine of “sovereign immunity”
barred people injured by the tortious acts of a federal officer or employee from filing lawsuits
against the United States. Sovereign immunity is a legal doctrine that ordinarily prohibits private citizens from suing a
sovereign state without its consent. Until the mid-20th century, a tort victim could obtain compensation from the United States
only by persuading Congress to pass a private bill compensating him for his loss.
Congress enacted the Federal Tort Claims Act (FTCA), which authorizes plaintiffs to obtain compensation from the United
States for the torts of its employees. Subjecting the federal government to tort liability creates a financial cost to the United
States, and it also may incentivize government officials to base their decisions on the desire to reduce the government’s
exposure to monetary damages, regardless of the perceived social benefit of an alternative. In an attempt to mitigate these
potential negative effects of abrogating the government’s immunity from liability and litigation, the FTCA limits the
circumstances in which a plaintiff may pursue a tort lawsuit against the United States. For example, the FTCA contains
several exceptions that categorically bar plaintiffs from recovering tort damages in certain kinds of cases. Federal law also
restricts the types and amount of damages a victorious plaintiff may recover in an FTCA suit. Additionally, a plaintiff may
not initiate an FTCA lawsuit unless he has timely complied with a series of procedural requirements, such as providing the
government an initial opportunity to evaluate the plaintiff’s claim and decide whether to settle it before the case proceeds to
federal court.
Since Congress first enacted the FTCA, the federal courts have developed a robust body of judicial precedent interpreting the
statute’s contours. The Supreme Court has expressed reluctance to reconsider its long-standing FTCA precedents, thereby
leaving it to Congress to amend the FTCA if it disagrees with judicial interpretation of its application. Some Members of
Congress have proposed legislation to modify the FTCA in various respects, such as by broadening the circumstances in
which a plaintiff may hold the United States liable for torts committed by government employees.
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The Federal Tort Claims Act (FTCA): A Legal Overview
Contents
Background ..................................................................................................................................... 3
The Preclusion of Individual Employee Tort Liability Under the FTCA ........................................ 7
Employees and Independent Contractors .................................................................................. 8
The Boyle Rule.................................................................................................................. 10
Scope of Employment .............................................................................................................. 11
Attorney General Certification ................................................................................................ 14
Exceptions to the FTCA’s Waiver of Sovereign Immunity........................................................... 16
The Discretionary Function Exception ................................................................................... 18
Whether the Challenged Conduct Is Discretionary........................................................... 19
Whether Policy Considerations Influence the Exercise of the Employee’s
Discretion....................................................................................................................... 22
The Intentional Tort Exception................................................................................................ 25
The Exception to the Intentional Tort Exception: The Law Enforcement Proviso ........... 26
The Foreign Country Exception .............................................................................................. 28
The Military Exceptions .......................................................................................................... 28
The Combatant Activities Exception ................................................................................ 28
The Feres Doctrine ........................................................................................................... 30
Other Limitations on Damages Under the FTCA.......................................................................... 32
Procedural Requirements............................................................................................................... 34
Legislative Proposals to Amend the FTCA ................................................................................... 37
Proposals to Abrogate or Modify Feres .................................................................................. 39
Private Bills ............................................................................................................................. 41
Contacts
Author Information........................................................................................................................ 42
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The Federal Tort Claims Act (FTCA): A Legal Overview
plaintiff injured by a defendant’s wrongful conduct may file a “tort” lawsuit to recover
money from that defendant.1 To name a familiar example of a tort, “a person who causes
a crash by negligently driving a vehicle is generally liable to the victim of that crash.”2
By forcing people who wrongfully injure others to pay money to their victims, the tort system
serves at least two functions: (1) “deter[ring] people from injuring others” and (2)
“compensat[ing] those who are injured.”3
A
In ordinary circumstances, a tort victim may sue the employer of a tortfeasor under the theory of
respondeat superior, where an employer bears responsibility for an employee’s actions.4 Until the
mid-20th century, however, the principle of sovereign immunity—a legal doctrine that bars private
citizens from suing a sovereign government without its consent—prohibited plaintiffs from suing
the United States for the tortious actions of federal officers and employees.5 Thus, for a
substantial portion of this nation’s history, persons injured by torts committed by the federal
government’s agents were generally unable to obtain financial compensation through the judicial
system.6
Congress ultimately deemed this state of affairs unacceptable and enacted the Federal Tort Claims
Act (FTCA) in 1946.7 The FTCA allows plaintiffs to file and prosecute certain types of tort
lawsuits against the United States in federal court, with the potential of recovering financial
compensation from the federal government.8 Some FTCA lawsuits are relatively mundane; for
instance, a civilian may sue the United States to obtain compensation for injuries sustained as a
result of minor accidents on federal property.9 Other FTCA cases, however, involve grave
allegations of government misfeasance. For example, after naval officers allegedly sexually
1 See, e.g., Tort, 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”). See generally CRS In
Focus IF11291, Introduction to Tort Law, by Kevin M. Lewis (describing tort law, its purposes, and its relevance to
Congress). The author of this product is no longer at CRS. Any questions from congressional clients about this product
should be directed to Michael Contino.
2 Bryant Walker Smith, Automated Driving and Product Liability, 2017 MICH. ST. L. REV. 1, 66. See also Jeffrey
Axelrad, Federal Tort Claims Act Administrative Claims: Better Than Third-Party ADR For Resolving Federal Tort
Claims, 52 ADMIN. L. REV. 1331, 1332 (2000) (describing “an automobile accident” as a “paradigm” example of a tort).
3 E.g., Alberto Galasso & Hong Luo, Tort Reform and Innovation, 60 J.L. & ECON. 385, 386 (2017). See also Nancy S.
Kim, Adhesive Terms and Reasonable Notice, 53 SETON HALL L. REV. 85, 126 (2022) (“It is universally accepted,
however, that tort law should compensate victims and deter harmful behavior.”); John C. P. Goldberg, TwentiethCentury Tort Theory, 91 GEO. L.J. 513, 514–83 (2003) (discussing various scholarly accounts of the purposes of tort
law).
4 See, e.g., Thiele v. Bd. of Trs. of Ill. State Univ., 35 F.4th 1064, 1067 (7th Cir. 2022).
5 E.g., Paul Figley, Ethical Intersections & The Federal Tort Claims Act: An Approach for Government Attorneys, 8 U.
ST. THOMAS L.J. 347, 348–49 (2011) [hereinafter Figley, Ethical Intersections] (explaining that “[f]or a century and a
half, . . . the United States’ sovereign immunity . . . protected it from suit[s]” filed by “citizens injured by the torts of
federal employees”).
6 Axelrad, supra note Error! Bookmark not defined., at 1332 (“Until the Federal Tort Claims Act was enacted in
1946, no general remedy existed for torts committed by federal agency employees.”). See also Figley, Ethical
Intersections, supra note 5, at 348 (explaining that, until 1946, “the only practical recourse for citizens injured by the
torts of federal employees was to ask Congress to enact private legislation affording them relief”).
7 28 U.S.C. §§ 1346(b), 2671–80. See, e.g., id. §§ 2401(b), 2402 (additional provisions of the U.S. Code that apply in
FTCA cases). See also infra “Background” (describing the circumstances leading to the FTCA’s enactment in 1946).
8 See, e.g., 28 U.S.C. § 2674 (“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.”).
9 See, e.g., Gibson v. United States, 809 F.3d 807, 809–10 (5th Cir. 2016) (lawsuit seeking compensation for injuries
the plaintiff allegedly sustained as a result of falling off a stepladder while exiting a trailer owned by the Federal
Emergency Management Agency).
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The Federal Tort Claims Act (FTCA): A Legal Overview
assaulted several women at the Tailhook Convention in 1991, those women invoked the FTCA in
an attempt to hold the United States liable for those officers’ conduct.10 Family members of
persons killed in the 1993 fire at the Branch Davidian compound in Waco likewise sued the
United States under the FTCA, asserting that federal law enforcement agents committed negligent
acts that resulted in the deaths of their relatives.11 Additionally, the U.S. Court of Appeals for the
First Circuit12 affirmed an award of more than $100 million against the United States in an FTCA
case alleging that the Federal Bureau of Investigation (FBI) committed “egregious government
misconduct” resulting in the wrongful incarceration of several men who were falsely accused of
participating in a grisly gangland slaying.13
Empowering plaintiffs to sue the United States can ensure that persons injured by federal
employees receive compensation and justice. At the same time, 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 (Bureau) reports that the United States spends hundreds of millions
of dollars annually to pay tort claims under the FTCA,14 and the Department of Justice reports
that it handles thousands of tort claims filed against the United States each year.15 Moreover,
exposing the United States to tort liability arguably creates a risk that government officials may
inappropriately base their decisions “not on the relevant and applicable policy objectives that
should be governing the execution of their authority,” but rather on a desire to reduce the
government’s “possible exposure to substantial civil liability.”16
As explained in greater detail below, the FTCA attempts to balance these competing
considerations by limiting the circumstances in which a plaintiff may successfully obtain a
damages award against the United States.17 For example, the FTCA categorically bars plaintiffs
10 Hallett v. United States, 877 F. Supp. 1423, 1425 (D. Nev. 1995). The court ultimately dismissed the plaintiffs’
claims against the United States on a variety of grounds. See id. at 1427–32; Hallett v. United States, 850 F. Supp. 874,
877–83 (D. Nev. 1994).
11 See Andrade v. Chojnacki, 65 F. Supp. 2d 431, 441, 446 (W.D. Tex. 1999). The United States ultimately prevailed at
trial and on appeal. See Andrade v. Chojnacki, 338 F.3d 448, 453 (5th Cir. 2003).
12 This report periodically references decisions by federal appellate courts of various regional circuits. For purposes of
brevity, references to a particular circuit in the body of this report (e.g., the First Circuit) refer to the U.S. Court of
Appeals for that particular circuit.
13 See Limone v. United States, 579 F.3d 79, 83–84, 102, 108 (1st Cir. 2009). See also Bravo v. United States, 583 F.3d
1297, 1299 n.2 (11th Cir. 2009) (Carnes, J., concurring in the denial of rehearing en banc) (opining that “[t]he facts in
the Limone case grew out of one of the darkest chapters in the history of the FBI, which involved rampant misconduct
and corruption in the Boston office spanning a period of at least two decades”).
14 The Bureau’s Annual Report to Congress for Fiscal Year 2022, https://fiscaldata.treasury.gov/datasets/judgmentfund-report-to-congress/judgment-fund-annual-report-to-congress, lists all payments that the United States made to
individual claimants under the FTCA and other compensatory statutes between October 1, 2021, and September 30,
2022. The sum of the “Confirmed Payment Amounts” for all reported “Litigative Payments” and “Administrative
Payments” pursuant to the FTCA equaled a total of $525,353,470.44. This value includes only those payments that the
Bureau explicitly coded as “Federal Tort Claims Act” payments.
15 Table 5 of the United States Attorneys’ Annual Statistical Report, https://www.justice.gov/media/1279221/dl?inline,
reports that plaintiffs filed 3,030 tort cases against the United States during FY2022, and that an additional 5,016 tort
cases against the federal government remained pending from the previous year. In addition, the report states that the
Department of Justice received 3,056 new tort-related civil matters during FY2022.
16 Mark C. Niles, “Nothing But Mischief”: The Federal Tort Claims Act and the Scope of Discretionary Immunity, 54
ADMIN. L. REV. 1275, 1309 (2002).
17 See Gregory C. Sisk, Official Wrongdoing and the Civil Liability of the Federal Government and Officers, 8 U. ST.
THOMAS L.J. 295, 322 (2011) (“The claim for individual justice in court to an aggrieved person or entity must be
balanced against the common good advanced by effective collective measures of government and the preservation of
democratic rule.”); David W. Fuller, Intentional Torts and Other Exceptions to the Federal Tort Claims Act, 8 U. ST.
THOMAS L.J. 375, 377 (2011) (“While a concern for fairness and equity in favor of aggrieved plaintiffs certainly
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The Federal Tort Claims Act (FTCA): A Legal Overview
from pursuing certain types of tort lawsuits against the United States.18 The FTCA also restricts
the types and amount of monetary damages that a plaintiff may recover against the United
States.19 Additionally, the FTCA requires plaintiffs to comply with an array of procedural
requirements before filing suit.20
This report provides an overview of the FTCA.21 It first discusses the events and policy concerns
that led Congress to enact the FTCA, including the background principle of sovereign
immunity.22 The report then explains the effect, scope, and operation of the FTCA’s waiver of the
United States’ immunity from certain types of tort claims.23 In doing so, the report describes
categorical exceptions to the government’s waiver of sovereign immunity,24 statutory limitations
on a plaintiff’s ability to recover monetary damages under the FTCA,25 and the procedures that
govern tort claims against the United States.26 The report concludes by discussing various
legislative proposals to amend the FTCA.27
Background
A person injured by the tortious activity of a federal employee generally has two potential targets
that may be named as a defendant in a tort lawsuit: (1) the federal employee who committed the
tort and (2) the federal government itself.28 In many cases, however, suing the employee is not a
viable option.29 For one, as explained in greater detail below, Congress has opted to shield federal
officers and employees from personal liability for torts committed within the scope of their
employment.30 Even if Congress had not decided to insulate federal employees from tort liability,
suing an individual is often an unattractive option for litigants, as individual defendants may lack
the financial resources to satisfy an award of monetary damages. 31
motivated legislators, that concern had to be balanced against others and was not the only impetus behind the FTCA.”);
Niles, supra note 16, at 1296 (“The critical objective in providing for governmental exposure to tort liability is arriving
at the proper balance between positive disincentives for negligent and unreasonable activity on the one hand and
negative liability threats which distort the proper decision making process on the other.”).
18 See infra “Exceptions to the FTCA’s Waiver of Sovereign Immunity.”
19 See infra “Other Limitations on Damages.”
20 See infra “Procedural Requirements.”
21 This report is not intended to provide an exhaustive treatment of all topics related to the FTCA. Treatises that analyze
the FTCA in greater depth include LESTER S. JAYSON & HON. ROBERT C. LONGSTRETH, HANDLING TORT CLAIMS:
ADMINISTRATIVE AND JUDICIAL REMEDIES (2005) and GREGORY C. SISK, LITIGATION WITH THE FEDERAL GOVERNMENT:
CASES AND MATERIALS (Foundation Press, 2d ed. 2008).
22 See infra “Background.”
23 See infra id.; “The Preclusion of Individual Employee Tort Liability Under the FTCA.”
24 See infra “Exceptions to the FTCA’s Waiver of Sovereign Immunity.”
25 See infra “Other Limitations on Damages.”
26 See infra “Procedural Requirements.”
27 See infra “Legislative Proposals to Amend the FTCA.”
28 See Harbury v. Hayden, 522 F.3d 413, 417 (D.C. Cir. 2008).
29 See id.
30 See infra “The Preclusion of Individual Employee Tort Liability Under the FTCA.”
31 See, e.g., Andrew Kent, Are Damages Different?: Bivens and National Security, 87 S. CAL. L. REV. 1123, 1140
(2014) (summarizing the FTCA as “allowing suits directly against the federal government instead of officers (who
might be judgment proof), and making the United States liable . . . .”); Stephen G. Gilles, The Judgment-Proof Society,
63 WASH. & LEE L. REV. 603, 606 (2006) (“[W]hen it comes to larger, litigable [tort] claims, many Americans are
‘judgment-proof’: They lack sufficient assets (or sufficient collectible assets) to pay the judgment in full (or even in
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For many litigants, the legal and practical unavailability of tort claims against federal employees
makes suing the United States a more attractive option.32 Whereas private defendants sometimes
lack the financial resources to satisfy judgments rendered against them, the United States
possesses sufficient financial resources to pay virtually any judgment that a court might enter
against it.33
A plaintiff suing the United States, however, may nonetheless encounter significant obstacles.34 In
accordance with the legal doctrine of sovereign immunity, a private plaintiff ordinarily may not
file a lawsuit against a sovereign entity—including the federal government—unless that
sovereign consents.35 For a substantial portion of this nation’s history, the doctrine of sovereign
immunity barred citizens injured by the torts of a federal officer or employee from pursuing a
lawsuit against the United States.36 Until 1946, “the only practical recourse for citizens injured by
the torts of federal employees was to ask Congress to enact private legislation affording them
relief”37 through “private bills.”38
Some, however, criticized the private bill system.39 Not only did private bills impose “a
substantial burden on the time and attention of Congress,”40 but some members of the public also
became increasingly concerned “that the private bill system was unjust and wrought with political
substantial part).”); Harbury, 522 F.3d at 417 (describing “federal employee[s]” as “potentially judgment-proof”).
32 See Harbury, 522 F.3d at 417.
33 See Figley, Ethical Intersections, supra note 5, at 361 (“From the perspective of a plaintiff . . . for whom the FTCA
provides a remedy, the government is the very best sort of deep pocket defendant.”); Axelrad, supra note Error!
Bookmark not defined., at 1333 (describing the United States as “the ultimate ‘deep pocket’”); Richard H. Seamon,
Causation and the Discretionary Function Exception to the Federal Tort Claims Act, 30 U.C. DAVIS L. REV. 691, 739
(1997) (“There is no defendant with a deeper pocket than the United States.”). To that end, Congress has created a
standing appropriation from which successful claimants may collect FTCA judgments and settlements known as the
Judgment Fund. 31 U.S.C. § 1304. See also James E. Pfander & Neil Aggarwal, Bivens, the Judgment Bar, and the
Perils of Dynamic Textualism, 8 U. ST. THOMAS L.J. 417, 426–27 & nn.51–52 (describing the Judgment Fund and its
history); Figley, Ethical Intersections, supra note 5, at 352–54 (same).
34 See Harbury, 522 F.3d at 417.
35 E.g., Pornomo v. United States, 814 F.3d 681, 687 (4th Cir. 2016) (“The default position is that the federal
government is immune to suit.”); Lipsey v. United States, 879 F.3d 249, 253 (7th Cir. 2018) (“The United States as
sovereign is immune from suit unless it has consented to be sued.”); Evans v. United States, 876 F.3d 375, 380 (1st Cir.
2017), cert. denied, 139 S. Ct. 81 (2018) (“The United States is immune from suit without its consent.”); Veronica J.
Finkelstein, A Distinction With a Difference: Understanding How the Federal Tort Claims Act Can Impact a Medical
Malpractice Case, 93 P.A. B. ASS’N Q. 21, 25 (2022) (“As the sovereign is infallible, it can only be sued by consent.”).
36 Figley, Ethical Intersections, supra note 5, at 348–49 (explaining that, “for a century and a half, . . . the United
States’ sovereign immunity . . . protected it from suit” by “citizens injured by the torts of federal employees”).
37 Id. at 348. See also Axelrad, supra note Error! Bookmark not defined., at 1332 (“Until the [FTCA] was enacted in
1946, no general remedy existed for torts committed by federal agency employees.”).
38 See, e.g., Brownback v. King, 141 S. Ct. 740, 746 (2021). For more information about private bills, see CRS Report
R45287, Private Bills: Procedure in the House, by Christopher M. Davis.
39 Figley, Ethical Intersections, supra note 5, at 350 (claiming that “Members of Congress had long recognized that”
private bills were “a poor way to resolve private claims against the government”).
40 Id. See also Helen Hershkoff, Early Warnings, Thirteenth Chimes: Dismissed Federal-Tort Suits, Public
Accountability, and Congressional Oversight, 2015 MICH. ST. L. REV. 183, 187 (describing the significant burdens of
“investigating the thousands of tort claims submitted to [Congress] each year for payment and enacting legislation for
any claimant Congress chose to compensate”); Pfander & Aggarwal, supra note 33, at 424 n.39 (commenting that the
76th Congress (in 1939 and 1940) considered more than 1,700 private bills, more than 300 of which became law).
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The Federal Tort Claims Act (FTCA): A Legal Overview
favoritism.”41 In 1946, Congress enacted the FTCA,42 which effectuated “a limited waiver of [the
federal government’s] sovereign immunity”43 from certain common law44 tort claims.45 With
certain exceptions and caveats discussed throughout this report, the FTCA authorizes plaintiffs to
bring the following civil lawsuits exclusively in federal court if their claims are
1.
2.
3.
4.
5.
6.
against the United States;
for money damages;
for injury to or loss of property, or personal injury or death;
caused by a federal employee’s46 negligent or wrongful act or omission;
while acting within the scope of his or her office or employment;
under circumstances where the United States, if a private person, would be liable
to the plaintiff in accordance with the law of the place where the act or omission
occurred.47
Thus, not only does the FTCA “free Congress from the burden of passing on petitions for private
relief”48 by “transfer[ring] responsibility for deciding disputed tort claims from Congress to the
41 Stephen L. Nelson, The King’s Wrongs and the Federal District Courts: Understanding the Discretionary Function
Exception to the Federal Tort Claims Act, 51 S. TEX. L. REV. 259, 267 (2009). See also Axelrad, supra note Error!
Bookmark not defined., at 1332 (“Favoritism in Congress . . . could make or break the claimant’s ability to be made
whole.”).
42 See, e.g., Nelson, supra note 41, at 268–71 (discussing the FTCA’s legislative history).
43 E.g., Evans v. United States, 876 F.3d 375, 380 (1st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018).
44
Notably, however, “the United States . . . has not rendered itself liable under [the FTCA] for constitutional tort
claims.” FDIC v. Meyer, 510 U.S. 471, 478 (1994) (emphasis added). See also Dianne Rosky, Respondeat Inferior:
Determining the United States’ Liability for the Intentional Torts of Federal Law Enforcement Officials, 36 U.C. DAVIS
L. REV. 895, 942 n.166 (2003) (“Repeated subsequent attempts to pass legislation creating federal liability for
constitutional torts have failed.”). As a general matter, “federal constitutional claims for damages are cognizable only
under” the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), “which runs against individual governmental officers personally,” Loumiet v. United States, 828 F.3d
935, 945 (D.C. Cir. 2016), or under the Tucker Act, which waives the government’s immunity against certain types of
constitutional claims under specified conditions. See, e.g., Paret-Ruiz v. United States, 827 F.3d 167, 176 (1st Cir.
2016) (citing 28 U.S.C. § 1491(a)(1)). Nevertheless—and as explained below—even though constitutional tort claims
are not themselves actionable under the FTCA, whether a government employee transgressed constitutional bounds
while performing his duties may nonetheless inform whether an exception to the FTCA’s general waiver of sovereign
immunity bars a plaintiff’s nonconstitutional tort claim. See infra notes 191–196 and accompanying text.
45 In addition to the FTCA, other federal statutes may also allow persons to obtain compensation from the United States
for injuries or property damage caused by an individual acting on the United States’ behalf. See, e.g., 10 U.S.C.
§ 2733(a) (allowing the armed forces to “settle[] and pay” certain “claim[s] against the United States for” property loss,
personal injury, or death caused by an officer or employee of the armed forces); id. § 2734(a) (allowing the armed
forces to “settle and pay” certain “claim[s] against the United States” brought by an “inhabitant of a foreign country”
for property loss, personal injury, or death). See generally Lt. Cmdr. Clyde A. Haig, Discretionary Activities of Federal
Agents Vis-A-Vis the Federal Tort Claims Act and the Military Claims Act: Are Discretionary Activities Protected at
the Administrative Adjudication Level, and to What Extent Should They Be Protected?, 183 MIL. L. REV. 110, 110–50
(2005) (comparing 10 U.S.C. § 2733(a) to the FTCA).
46 See infra “Employees and Independent Contractors.”
47 Meyer, 510 U.S. at 477 (quoting 28 U.S.C. § 1346(b)).
48 Pfander & Aggarwal, supra note 33, at 424. See, e.g., Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983) (noting that
Congress enacted the FTCA “in the interest of providing a more efficient means of compensation” than “securing
recompense by private bill”).
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courts,”49 it also creates a mechanism to compensate victims of governmental wrongdoing.50 In
addition to this compensatory purpose, the FTCA also aims to deter tortious conduct by federal
personnel by rendering the United States liable for the torts of its agents, thereby incentivizing the
government to carefully supervise its employees.51
The FTCA does not itself create a new federal cause of action against the United States; rather,
the FTCA waives the United States’ sovereign immunity from certain types of claims that exist
under state tort law.52 Thus, in most respects, “the substantive law of the state where the tort
occurred determines the liability of the United States” in an FTCA case.53 In this way, the FTCA
largely “renders the Government liable in tort as a private individual would be under like
circumstances.”54
Critically, however, the FTCA’s waiver of sovereign immunity is not complete.55 To address
“concerns . . . about the integrity and solvency of the public fisc and the impact that extensive
litigation might have on the ability of government officials to focus on and perform their other
duties,” the FTCA affords the United States “important protections and benefits . . . not enjoyed
by other tort defendants”56 that are explained below.57 Moreover, to limit the forums in which a
plaintiff may permissibly litigate a tort suit against the United States, Congress vested the federal
district courts (as well as a small number of territorial courts) with exclusive jurisdiction over
FTCA cases.58 Furthermore, because Congress believed “that juries would have difficulty viewing
49 Figley, Ethical Intersections, supra note 5, at 347. See also Hershkoff, supra note 40, at 196 (explaining that the
FTCA “by design shifted responsibility for disputes about government negligence from Congress to the Article III
courts”).
50 Pfander & Aggarwal, supra note 33, at 424. See, e.g., Sutton v. United States, 819 F.2d 1289, 1292 (5th Cir. 1987)
(explaining that Congress enacted the FTCA “to afford easy and simple access to the federal courts for persons injured
by the activities of government” (quoting Collins v. United States, 783 F.2d 1225, 1233 (5th Cir. 1986) (Brown, J.,
concurring))).
51 Loumiet v. United States, 828 F.3d 935, 941 (D.C. Cir. 2016).
52 E.g., Pornomo v. United States, 814 F.3d 681, 687 (4th Cir. 2016) (“The FTCA does not create a new cause of
action; rather, it permits the United States to be held liable in tort by providing a limited waiver of sovereign
immunity.”); Raplee v. United States, 842 F.3d 328, 331 (4th Cir. 2016) (explaining that “the FTCA merely waives
sovereign immunity to make the United States amenable to a state tort suit”); Hornbeck Offshore Transp., LLC v.
United States, 569 F.3d 506, 508 (D.C. Cir. 2009) (“This statutory text does not create a cause of action against the
United States; it allows the United States to be liable if a private party would be liable under similar circumstances in
the relevant jurisdiction.”).
53 Raplee, 842 F.3d at 331. See also, e.g., 28 U.S.C. § 1346(b)(1) (providing that the United States may be liable to the
plaintiff in tort under the FTCA “if a private person[] would be liable to the claimant in accordance with the law of the
place where the act or omission occurred”); Garling v. EPA, 849 F.3d 1289, 1294 (10th Cir. 2017) (“State substantive
law applies to suits brought against the United States under the FTCA.” (quoting Hill v. SmithKline Beecham Corp.,
393 F.3d 1111, 1117 (10th Cir. 2004))). Because “state law operates in the FTCA not of its own force, but by
congressional incorporation[,] [s]everal commentators have cited the FTCA as a relatively unusual example of state law
that operates in the federal system by congressional choice.” Rosky, supra note 44, at 957.
54 Richards v. United States, 369 U.S. 1, 6 (1962). See also, e.g., 28 U.S.C. § 2674 (“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.”).
55 Niles, supra note 16, at 1300. See also Fuller, supra note 17, at 377 (“Congress never intended the FTCA as a
comprehensive waiver of governmental immunity from tort liability.”).
56 Niles, supra note 16, at 1300.
57 See infra “Exceptions to the FTCA’s Waiver of Sovereign Immunity”; “Other Limitations on Damages”; “Procedural
Requirements.”
58 28 U.S.C. § 1346(b)(1) (“Subject to the provisions of chapter 171 of this title, 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
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the United States as a defendant without being influenced by the fact that it has a deeper pocket
than any other defendant,”59 FTCA cases that proceed to trial are generally tried by the court
without a jury.60
The Preclusion of Individual Employee Tort
Liability Under the FTCA
The FTCA only authorizes tort lawsuits against the United States itself;61 it expressly shields
individual federal employees from personal liability for torts that they commit within the scope of
their employment.62 Thus, under the FTCA the remedy against the United States “is exclusive of
any other civil action or proceeding for money damages” that might otherwise be available
“against the employee whose act or omission gave rise to the claim.”63 Starting in the late 1980s,
Congress has prohibited courts from holding federal employees personally liable for torts
committed within the scope of their employment in order to avert what Congress perceived as “an
immediate crisis involving the prospect of personal liability and the threat of protracted personal
tort litigation for the entire Federal workforce.”64 The individual employee generally remains
immune from tort liability for torts committed within the scope of employment, even if a
provision of the FTCA forecloses the plaintiff from recovering monetary damages from the
United States itself.65
employee of the Government . . . .”). A litigant aggrieved by a district or territorial court’s judgment in an FTCA case
generally has the right to appeal to a regional U.S. Court of Appeals. See id. § 1291 (providing that, with limited
exceptions, “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. See id. § 1254 (“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.”).
59 Matthew L. Zabel, Advisory Juries and Their Use and Misuse in Federal Tort Claims Act Cases, 2003 B.Y.U. L.
REV. 185, 205 (citing 92 CONG. REC. 10,092 (1946) (statement of Rep. Scrivner)).
60 28 U.S.C. § 2402; Carlson v. Green, 446 U.S. 14, 22 (1980) (“A plaintiff cannot opt for a jury in an FTCA action.”).
See Osborn v. Haley, 549 U.S. 225, 252 (2007) (explaining that the U.S. Constitution does not require a jury trial in
FTCA cases because “the Seventh Amendment, which preserves the right to a jury trial . . . does not apply to
proceedings against the sovereign”); Chestnut v. United States, 15 F.4th 436, 440 (6th Cir. 2021) (“Since a plaintiff
does not have a jury right in an FTCA action . . . .”). But see Zabel, supra note 59, at 194 (noting that federal courts
sometimes empanel “advisory juries” in FTCA cases to render nonbinding verdicts); Allgeier v. United States, 909
F.2d 869, 875 (6th Cir. 1990) (FTCA case in which a “trial before an advisory jury took place”).
61 See, e.g., Jude v. Comm’r of Soc. Sec., 908 F.3d 152, 157 n.4 (6th Cir. 2018) (“[T]he only proper defendant in an
FTCA claim is the United States.”).
62 Levin v. United States, 568 U.S. 503, 509 (2013). That said, the FTCA shields federal employees from liability only
for tort claims; it does not shield federal employees from personal liability for constitutional or statutory violations. See
28 U.S.C. § 2679(b)(2) (“Paragraph (1) does not extend or apply to a civil action against an employee of the
Government . . . which is brought for a violation of the Constitution of the United States, or . . . a violation of a statute
of the United States . . .”). See also Sisk, supra note 17, at 307 (“[F]ederal employees remain potentially liable for
constitutional torts.” (quoting KENNETH C. DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 19.3, at
227 (3d ed. 1994))).
63 28 U.S.C. § 2679(b)(1). See also Levin, 568 U.S. at 509. This provision of the FTCA is “often called the Westfall
Act.” Id.
64 Does 1-10 v. Haaland, 973 F.3d 591, 597 (6th Cir. 2020) (“In 1988, Congress abandoned this piecemeal approach
and passed broad legislation to expand the benefit of sovereign immunity to all federal employees.”); Adams v. United
States, 420 F.3d 1049, 1054 (9th Cir. 2005).
65 See, e.g., United States v. Smith, 499 U.S. 160, 165 (1991) (concluding that federal law “immunizes Government
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As the following subsections of this report explain, determining whether the FTCA governs a
particular tort case—and, thus, whether the FTCA shields the individual who committed the
alleged tort from personal liability—requires the court to ask two threshold questions: (1) whether
the individual who committed the tort was in fact a federal employee,66 and, if so, (2) whether
that individual committed the tort within the scope of their office or employment.67
Employees and Independent Contractors
The FTCA only waives the United States’ sovereign immunity as to torts committed by an
“employee of the Government.”68 Thus, if a plaintiff attempts to sue the United States for a tort
committed by someone who is not a federal employee, the plaintiff’s claim against the
government will necessarily fail.69 For the purposes of the FTCA, the term “employee of the
government” includes
officers or employees of any federal agency;
members of the military or naval forces of the United States;
members of the National Guard while engaged in training or duty under certain
provisions of federal law;
persons acting on behalf of a federal agency in an official capacity; and
officers and employees of a federal public defender organization (except when
such employees are performing professional services in the course of providing
representation to clients).70
As a result of this relatively broad definition of “employee,” the FTCA effectively waives the
government’s immunity from torts committed by certain categories of persons who might not
ordinarily be considered “employees” as a matter of common parlance.71
Because the FTCA applies only to torts committed by federal “employees,” the FTCA provision
shielding federal employees from personal tort liability does not protect nonemployees, or
individuals who fall outside the statutory definition of employee.72 With certain caveats discussed
below,73 a plaintiff injured by the tortious action of a nonemployee may potentially be able to sue
employees from suit even when an FTCA exception precludes recovery against the Government”).
66 See infra “Employees and Independent Contractors.”
67 See infra “Scope of Employment.”
68 28 U.S.C. § 1346(b)(1) (emphasis added).
69 See, e.g., Kinebrew v. United States, No. 15-6855, 2016 WL 3014887, at *1 (E.D. Pa. May 26, 2016) (“The United
States has not waived its sovereign immunity under the FTCA for claims based on the alleged negligence of nonemployees . . . .”); Gonzalez v. United States, C.A. No. C-06-352, 2007 WL 2008675, at *3 (S.D. Tex. July 5, 2007)
(“The FTCA does not impose liability on the government for the acts of non-employees . . . .”).
70 28 U.S.C. § 2671.
71 See, e.g., U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Va., LLC, 899 F.3d 236, 248 (4th Cir. 2018) (“[A]n
‘employee’ for purposes of the [FTCA] need not have formal employee status.”).
72 See, e.g., Creel v. United States, 598 F.3d 210, 211–15 (5th Cir. 2010) (concluding that, because individual physician
at Veterans Affairs Medical Center was an independent contractor rather than an employee of the federal government,
plaintiff’s medical malpractice claim against that surgeon could proceed); Woodruff v. Covington, 389 F.3d 1117, 1125
(10th Cir. 2004) (affirming denial of individual defendants’ motion to dismiss the plaintiff’s tort claims against them
and to substitute the United States as the defendant on the ground that the individual defendants were “not ‘federal
employees’”).
73 See infra “The Boyle Rule.”
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that nonemployee individually under ordinary principles of state tort law, even though he could
not sue either federal employees or the United States under the FTCA.74
Whether an individual doing work on behalf of the federal government meets the statutory
definition of employee is not always immediately clear. For instance, the United States commonly
hires independent contractors to carry out its governmental objectives.75 The FTCA, however,
explicitly excludes independent contractors from the statutory definition of “employee.”76 As a
result, “the government cannot be held liable” under the FTCA “for torts committed by its
independent contractors”;77 the plaintiff must instead attempt to seek compensation from the
contractor itself.78
Whether an alleged tortfeasor is an independent contractor as opposed to a government employee
is often a question for courts to resolve. While different courts consider different sets of factors,79
most courts hold that “the critical factor” when assessing whether a defendant is an employee or
74 See, e.g., Creel, 598 F.3d at 211–15 (remanding with instructions to deny nonemployee’s motion to dismiss and to
grant United States’ motion to dismiss); Ezekiel v. Michel, 66 F.3d 894, 903–04 (7th Cir. 1995) (explaining that if
individual defendant was “an independent contractor rather than a federal employee,” the plaintiff’s case against that
defendant could proceed).
75 See, e.g., In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 331 (4th Cir. 2014) (“Since the United States began its
military operations in Afghanistan and Iraq in 2001 and 2003, respectively, its use of private contractors to support its
mission has risen to ‘unprecedented levels.’ At times, the number of contract employees has exceeded the number of
military personnel alongside whom they work in these warzones.” (quoting Comm’n on Wartime Contracting in Iraq
and Afghanistan, At What Risk? Correcting Over-Reliance on Contractors in Contingency Operations 1 (Feb. 24,
2011))).
76 See 28 U.S.C. § 2671; U.S. Tobacco, 899 F.3d at 248 (“An ‘employee’ does not include an ‘independent contractor’
working for the government.”) (citing 28 U.S.C. § 2671; United States v. Orleans, 425 U.S. 807, 814 (1976)).
77 Edison v. United States, 822 F.3d 510, 514 (9th Cir. 2016). Accord, e.g., Carroll v. United States, 661 F.3d 87, 93
(1st Cir. 2011) (“The FTCA expressly does not waive the government’s immunity for claims arising from the acts or
omissions of independent contractors.”); Tsosie v. United States, 452 F.3d 1161, 1163 (10th Cir. 2006) (“Although
‘employees’ of the government include officers and employees of federal agencies, ‘independent contractors’ are not
‘employees.’ As such, ‘the FTCA does not authorize suits based on the acts of independent contractors or their
employees.’” (quoting Curry v. United States, 97 F.3d 412, 414 (10th Cir. 1996))).
78 See, e.g., Creel, 598 F.3d at 211–15 (concluding that, because individual physician at Veterans Affairs Medical
Center was an independent contractor rather than an employee of the federal government, plaintiff’s medical
malpractice claim against that surgeon could proceed); Woodruff v. Covington, 389 F.3d 1117, 1125 (10th Cir. 2004)
(affirming denial of individual defendants’ motion to dismiss the plaintiff’s tort claims and to substitute the United
States as the defendant on the ground that the defendants were “not ‘federal employees’”); Ezekiel, 66 F.3d at 903–04
(concluding that if individual defendant was “an independent contractor rather than a federal employee,” the plaintiff’s
case against the defendant could proceed). But see infra “The Boyle Rule.”
79 Compare, e.g., U.S. Tobacco, 899 F.3d at 248 n.4 (“Although none are dispositive of the question, factors that courts
may consider in making the determination [of whether the tortfeasor is an independent contractor] include: ‘(a) the
extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the
one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in
the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the
skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities,
tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular
business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.’” (quoting Robb v. United States, 80 F.3d 884, 889 n.5 (4th Cir.
1996))), and Creel, 598 F.3d at 213–14 (listing similar factors), with, e.g., Woodruff, 389 F.3d at 1126 (“We have
devised seven factors to guide this determination: (1) the intent of the parties; (2) whether the United States controls
only the end result or may also control the manner and method of reaching the result; (3) whether the person uses his
own equipment or that of the United States; (4) who provides liability insurance; (5) who pays social security tax;
(6) whether federal regulations prohibit federal employees from performing such contracts; and (7) whether the
individual has authority to subcontract to others.” (quoting Lilly v. Fieldstone, 876 F.2d 857, 859 (10th Cir. 1989))).
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an independent contractor for the purposes of the FTCA is whether the federal government
possesses the authority “to control the detailed physical performance of the contractor.”80 “[A]
contractor can be said to be an employee or agent of the United States within the intendment of
the [FTCA] only where the Government has the power under the contract to supervise a
contractor’s day-to-day operations and to control the detailed physical performance of the
contractor.”81For example, courts have typically determined that certified registered nurse
anesthetists (CRNAs) working for federal hospitals qualify as employees under the FTCA.82
These courts have justified that conclusion on the ground that CRNAs do not ordinarily enjoy
broad discretion to exercise their independent judgment when administering anesthesia, but
instead operate pursuant to the direct supervision and control of an operating surgeon or
anesthesiologist working for the federal government.83 That same analysis produces a different
result when considering physicians. Courts have generally held that because physicians who
provide medical services at facilities operated by the United States often operate relatively
independently of the federal government’s control, such physicians ordinarily qualify as
“independent contractors, and not employees of the government for FTCA purposes.”84
The Boyle Rule
Because the FTCA’s prohibition on tort suits against individual federal employees does not
insulate independent contractors from liability, a plaintiff injured by the tortious action of an
independent contractor working for the federal government may potentially be able to recover
compensation directly from that contractor.85 Nevertheless, a plaintiff asserting a tort claim
80 Ohlsen v. United States, 998 F.3d 1143, 1157 (10th Cir. 2021); U.S. Tobacco, 899 F.3d at 248. See also, e.g., Creel,
598 F.3d at 213 (same).
81 U.S. Tobacco, 899 F.3d at 248 (quoting Wood v. Standard Prods. Co., 671 F.2d 825, 829 (4th Cir. 1982)) (internal
quotation marks omitted).
82 See, e.g., Bird v. United States, 949 F.2d 1079, 1080 (10th Cir. 1991) (“[A]t the time in question the [certified
registered nurse anesthetist] was not an independent contractor but was an employee of the government[.]”); Bryant,
2000 WL 33201357, at *11 (concluding that nurse anesthetist “was acting as an employee of the federal government
within the meaning of the FTCA”).
83 See Bryant, 2000 WL 33201357, at *9 (“[T]he written policy and procedure of the Medical Center required either the
chief anesthesiologist or the operating surgeon to exercise immediate clinical supervision of CRNAs . . . .”); id. at *9–
10 (“[A] CRNA’s ability to exercise his or her professional judgment is limited . . . [S]o long as the directions of the
surgeon comply with standards of safe anesthesia practice, a CRNA is obligated to follow those directions even if he or
she disagrees.”); id. at *10 (“[T]he undisputed evidence of record demonstrates that CRNA Franc was subject to the
supervision and control of operating surgeons when engaging in her activities as a nurse anesthetist. Unlike a physician,
her actions in administering anesthesia were subject to the control of federal employees.”).
84 Robb, 80 F.3d at 890 (citing numerous cases). See also Creel, 598 F.3d at 212 (concluding that orthopedic surgeon
who performed surgical procedure at Veterans Affairs Medical Center “was an independent contractor”). Cf. Woodruff,
389 F.3d at 1128 (holding that defendant physicians failed to prove they were federal employees for FTCA purposes).
That said, there is no per se rule “that a physician must always be deemed an independent contractor;” whether any
particular physician hired by the government qualifies as an independent contractor depends on the facts of each case.
Robb, 80 F.3d at 889. See also Ezekiel v. Michel, 66 F.3d 894, 903–04 (7th Cir. 1995) (concluding that “resident
physician in training” was “an ‘employee of the Government’ for purposes of the FTCA”).
Moreover, Congress has provided that, under specified circumstances, certain types of medical contractors qualify as
employees of the federal government for purposes of the FTCA. See Glenn v. Performance Anesthesia, P.A., No. 5:09CV-00309-BR, 2010 WL 3420538, at *5 (E.D.N.C. Aug. 27, 2010), aff’d, Hancox v. Performance Anesthesia, P.A.,
455 F. App’x 369 (4th Cir. 2011) (summary order) (“[P]ursuant to the Gonzalez Act, health care providers who serve
under a personal services contract authorized by the U.S. Secretary of Defense are deemed to be employees of the
government for the purpose of disposing of personal injury claims.”); 10 U.S.C. § 1089 (the Gonzalez Act).
85 See, e.g., Creel, 598 F.3d at 211–15 (concluding that, because individual physician at Veterans Affairs Medical
Center was an independent contractor rather than an employee of the federal government, plaintiff’s medical
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directly against a federal contractor may still encounter other obstacles to recovery. As the
Supreme Court ruled in its 1988 decision, Boyle v. United Technologies Corp., a plaintiff may not
pursue state law tort claims against a government contractor if imposing such liability would
either create “a ‘significant conflict’” with “an identifiable ‘federal policy or interest’” or
“‘frustrate specific objectives’ of federal legislation.”86 Several courts have therefore rejected tort
claims against defense contractors on the ground that allowing such suits to proceed could
undesirably interfere with military objectives.87 Courts have been less willing to extend Boyle
immunity to nonmilitary contractors.88
Even in the military contractor context, government officials “must remain the agents of
decision.”89 Accordingly, for Boyle to apply, the government must have mandated the contractor’s
action that allegedly violated state law.90
Scope of Employment
As noted above,91 the FTCA applies only to torts that a federal employee commits “while acting
within the scope of his office or employment.”92 This operates as a “threshold requirement” under
the FTCA.93 Thus, “[i]f a government employee acts outside the scope of his employment when
malpractice claim against that surgeon could proceed); Woodruff, 389 F.3d at 1125 (affirming denial of individual
defendants’ motion to dismiss the plaintiff’s tort claims and to substitute the United States as the defendant on the
ground that the defendants were “not ‘federal employees’”); Ezekiel, 66 F.3d at 903–04 (concluding that if individual
defendant was “an independent contractor rather than a federal employee,” the plaintiff’s case against the defendant
could proceed).
86 487 U.S. 500, 507 (1988) (quoting United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979); Wallis v. Pan
Am. Petroleum Corp., 384 U.S. 63, 68 (1966)).
87 See, e.g., Boyle, 487 U.S. at 512 (“[S]tate law which holds Government contractors liable for design defects in
military equipment does in some circumstances present a ‘significant conflict’ with federal policy and must be
displaced.”); Saleh v. Titan Corp., 580 F.3d 1, 8 (D.C. Cir. 2009) (“[W]hether the defendant is the military itself or its
contractor, the prospect of military personnel being haled into lengthy and distracting court or deposition proceedings is
the same where, as here, contract employees are so inextricably embedded in the military structure. Such proceedings,
no doubt, will as often as not devolve into an exercise in finger-pointing between the defendant contractor and the
military, requiring extensive judicial probing of the government’s wartime policies. Allowance of such suits will surely
hamper military flexibility and cost-effectiveness, as contractors may prove reluctant to expose their employees to
litigation-prone combat situations.”); Koohi v. United States, 976 F.2d 1328, 1336–37 (9th Cir. 1992) (concluding that
federal law preempted claims against private companies involved in construction of air defense system). But see Harris
v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 481 (3d Cir. 2013) (allowing claim against defense contractor to
proceed where “[t]he military did not retain command authority over” the contractor); In re Hanford Nuclear
Reservation Litig., 534 F.3d 986, 995–96, 1000–01 (9th Cir. 2008) (concluding that federal statute governing liability
for nuclear accidents precluded government contractor from asserting Boyle defense against claims arising out of
nuclear incident).
88 See, e.g., Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720, 731 (9th Cir. 2015) (“In the Ninth Circuit,
however, the government contractor defense is only available to contractors who design and manufacture military
equipment. This precedent renders the government contractor defense unavailable to VSE, a non-military contractor.”)
(internal citations, quotation marks, and brackets omitted). But cf. In re Katrina Canal Breaches Litig., 620 F.3d 455,
459 n.3 (5th Cir. 2010) (declining to decide whether “Boyle is applicable only to military contractors”).
89 Badilla v. Midwest Air Traffic Control Serv., Inc., 8 F.4th 105, 122 (2d Cir. 2021) (citing In re Joint E. & S. Dist.
N.Y. Asbestos Litig., 897 F.2d 626, 630 (2d Cir. 1999).
90 Id.; see Helfrich v. Blue Cross and Blue Shield Ass’n, 804 F.3d 1090, 1098 (10th Cir. 2015) (“In other words, in that
circumstance—when state law was contrary to a contract term actually selected by an agency (a ‘discretionary’
decision)—there would be a ‘significant conflict between government policy and state tort liability of the contractor.”).
91 See supra “Background”; “The Preclusion of Individual Employee Tort Liability Under the FTCA.”
92 28 U.S.C. § 1346(b)(1).
93 Magee v. United States, 9 F.4th 675, 680 (8th Cir. 2022).
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engaging in tortious conduct, an action against the United States under the FTCA will not lie.”94
Instead, the plaintiff may potentially file a state-law tort action against the employee who
committed the tort.95
Courts usually determine whether a federal employee was acting within the scope of his
employment at the time he committed an alleged tort by applying the law of the state in which the
tort occurred.96 Although the legal principles that govern the scope of a tortfeasor’s employment
vary from state to state,97 many states consider whether the employer hired the employee to
perform the act in question and whether the employee undertook the allegedly tortious activity to
promote the employer’s interests.98 The mere fact that the employee committed an illegal or
wrongful act does not necessarily entail that the employee acted outside the scope of his
employment.99
94 Folley v. Henderson, 175 F. Supp. 2d 1007, 1016 (S.D. Ohio 2001) (emphasis added). See, e.g., Zeranti v. United
States, 167 F. Supp. 3d 465, 468–69 (W.D.N.Y. 2016) (“[I]f the federal employee was acting outside the scope of his or
her employment, then the FTCA does not apply and the Court does not have jurisdiction over a vicarious liability claim
asserted against the United States for its employee’s negligence.”).
95 Folley, 175 F. Supp. 2d at 1016. See, e.g., Dowdy v. Hercules, No. 07-CIV-2488(EVEN) (LB), 2010 WL 169624, at
*5 (E.D.N.Y. Jan. 15, 2010) (“As implied by the text of the FTCA, lawsuits against federal employees arising out of
actions taken outside of the scope of their federal employment would face no sovereign immunity obstacles, because
such claims are against those individuals, not the United States.”); Moreland v. Barrette, No. CR 05-480 TUC DCB,
2007 WL 2480235, at *3 (D. Ariz. Aug. 28, 2007) (concluding that because doctor employed by army hospital “did not
act within the scope of his employment” at the time he allegedly committed a tort, “the Government [wa]s not liable
under the FTCA for his alleged negligent acts,” and the doctor himself was “not immune from suit under the FTCA”).
96 See, e.g., M.D.C.G. v. United States, 956 F.3d 762, 769 (5th Cir. 2020) (“‘The issue of whether an employee is
acting within the scope of his employment for purposes of the FTCA is governed by the law of the state in which the
wrongful act occurred.”); Fountain v. Karim, 838 F.3d 129, 135 (2d Cir. 2016) (“We interpret the FTCA’s ‘scope of
employment’ requirement in accordance with the . . . law of the jurisdiction where the tort occurred.”); Johnson v.
United States, 534 F.3d 958, 963 (8th Cir. 2008) (“Scope of employment questions are governed by the law of the state
where the alleged tortious acts took place.”). But see Doe v. Meron, 929 F.3d 153, 164 (4th Cir. 2019) (“When the
allegedly tortious conduct occurs in a foreign country, rather than apply the law of the foreign country, courts have
frequently applied District of Columbia law.”).
97 Compare, e.g., Johnson, 534 F.3d at 963 (“In determining whether an employee’s act is within the scope of
employment [under South Dakota law,] a court considers a number of factors, including: (1) whether the act is
commonly done in the course of business; (2) the time, place, and purpose of the act; (3) whether the act is within the
enterprise of the master; the similarity of the act done to the act authorized; (4) whether the means of doing harm has
been furnished by the master; and (5) the extent of departure from the normal method of accomplishing an authorized
result.”), with, e.g., Rodriguez v. Sarabyn, 129 F.3d 760, 766 (5th Cir. 1997) (“Texas’s general rule . . . is that an
employee acts within his scope of employment if the act is done (1) within the employee’s general authority, (2) in
furtherance of the employer’s business, and (3) for the accomplishment of the objective for which the employee was
employed.”). See also Paula Dalley, Destroying the Scope of Employment, 55 WASHBURN L.J. 637, 641 (2016) (“[T]he
definition of ‘scope of employment’ varies from state to state.”).
98 See, e.g., Merlonghi v. United States, 620 F.3d 50, 55 (1st Cir. 2010) (“Massachusetts courts . . . determine whether
an employee’s conduct is within the scope of his employment based on (1) ‘whether the conduct in question is of the
kind the employee is hired to perform,’ (2) ‘whether it occurs within authorized time and space limits,’ and
(3) ‘whether it is motivated, at least in part, by a purpose to serve the employer.’” (quoting Clickner v. City of Lowell,
663 N.E.2d 852, 855 (Mass. 1996))); Rodriguez, 129 F.3d at 766; Callaham ex rel. Foster v. United States, C/A
No. 3:12-cv-579-JFA, 2012 WL 1835366, at *2 (D.S.C. May 21, 2012) (“In South Carolina, an act done for the
purpose of benefitting the employer is considered within the scope of employment.”); Birke v. United States,
No. 4:08CV1608MLM, 2009 WL 1605771, at *4 (E.D. Mo. June 8, 2009) (“Florida law provides [that] to establish
employer liability based on its employee’s acting within the scope of his employment, a plaintiff must show that ‘(1)
the conduct is of the kind the employee is hired to perform, (2) the conduct occurs substantially within the time and
space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part by a
purpose to serve the master.’” (quoting Fernandez v. Fla. Nat’l Coll., Inc., 925 So.2d 1096, 1100 (Fla. Dist. Ct. App.
2006))).
99 See, e.g., Doe, 929 F.3d at 166 (“[E]ven intentional torts and illegal conduct may fall within employees’ scope of
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Two cases involving vehicular mishaps illustrate how courts perform the scope of employment
inquiry in practice. In Barry v. Stevenson, for instance, two soldiers—one driver and one
passenger—were returning to their headquarters in a government-owned Humvee military truck
after completing a work assignment on a military base.100 The truck hit a dip in the trail, injuring
the passenger.101 Because the driver “was engaged in annual Army National Guard training” and
“driving a government vehicle . . . on government property” at the time of the accident, the court
concluded that the driver “was acting within the course of his employment” as a federal officer
“when the injury occurred.”102
In Merlonghi v. United States, by contrast, a special agent employed by the Office of Export
Enforcement (OEE) collided with a motorcyclist while driving home from work in a government
vehicle.103 The agent and the motorcyclist had engaged in a verbal altercation and “swerved their
vehicles back and forth towards each other” immediately prior to the collision.104 After
brandishing a firearm at the motorcyclist,105 the agent sharply careened his vehicle into the
motorcycle, throwing the motorcyclist to the ground and severely injuring him.106 The court
determined that the agent “was not acting within the scope of his employment” at the time of the
collision even though “he was driving a government vehicle and was on call.”107 The court first
observed that “engaging in a car chase while driving home from work [wa]s not the type of
conduct that OEE hired [the agent] to perform.”108 The court also emphasized that the agent “was
not at work, responding to an emergency, or driving to a work assignment” at the time of the
collision.109 The court further noted that the agent’s actions were not “motivated . . . by a purpose
to serve the employer,” as the agent’s “argument with [the motorcyclist] and the back-and-forth
swerving leading to the altercation had nothing to do with an OEE assignment. His conduct
related to personal travel and a personal confrontation.”110 Because the agent “was not acting
within the scope of his employment when he crashed into” the motorcyclist, the court ruled that
the district court had correctly dismissed the motorcyclist’s claims seeking compensation from
the United States.111
employment. In considering whether an intentional tort or an illegal act falls within the scope of employment, the
inquiry is whether the tort or crime was a foreseeable aspect of the employee’s employment.”) (internal citations
omitted).
100 965 F. Supp. 1220, 1222–23 (E.D. Wis. 1997).
101 Id. at 1223.
102 Id.
103 620 F.3d at 52.
104 Id.
105 Id.
106 Id. at 53.
107 Id. at 56.
108 Id.
109 Id.
110 Id. at 57.
111 Id. at 58.
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Attorney General Certification
Occasionally a plaintiff will file a tort suit against an individual112 without realizing that the
defendant is a federal employee.113 In such cases, the FTCA allows the Attorney General to
certify “that the defendant employee was acting within the scope of his office or employment at
the time of the incident out of which the claim arose.”114 If the Attorney General files such a
certification, then
the lawsuit is “deemed an action against the United States” under the FTCA;115
the employee is dismissed from the action, and the United States is substituted as
defendant in the employee’s place;116 and
the case proceeds against the government in federal court.117
In such instances, the United States “remain[s] the federal defendant in the action unless and until
the [d]istrict [c]ourt determines that the employee . . . engaged in conduct beyond the scope of his
employment.”118 If a district court determines that an employee was acting beyond the scope of
their duties, however, the court must deny the substitution motion and the action will continue
against that employee in their personal capacity.119
By creating a mechanism by which the United States may substitute itself as the defendant in the
individual employee’s place, the FTCA effectively “immunize[s] covered federal employees not
simply from liability, but from suit.”120 In this way, the FTCA “relieve[s] covered employees from
the cost and effort of defending the lawsuit” and instead places “those burdens on the
Government’s shoulders.”121
In some cases, the Attorney General’s decision to substitute the United States in the officer’s
place may adversely affect the plaintiff’s chances of prevailing on his claims. Generally speaking,
once the Attorney General certifies that the federal employee was acting within the scope of his or
her employment at the time of the allegedly tortious act, “the FTCA’s requirements, exceptions,
112 Courts have disagreed regarding whether the Attorney General may certify a corporation, rather than a natural
person, as a federal “employee” that is immune from liability under the FTCA. Compare Adams v. United States, 420
F.3d 1049, 1055 (9th Cir. 2005) (“Corporate entities . . . are not eligible for immunity certification as government
employees under the FTCA.”), with B & A Marine Co. v. Am. Foreign Shipping Co., 23 F.3d 709, 715–16 (2d Cir.
1994) (affirming district court’s ruling that corporate entity was an “employee[] of the Government acting within the
scope of [its] employment” for FTCA certification purposes).
113 See Hershkoff, supra note 40, at 200 (noting that injured persons will sometimes “file[] a garden-variety personalinjury suit” against an individual “in state court, not knowing that the tortfeasor is an agent or employee of the United
States”).
114 28 U.S.C. § 2679(d)(1)–(2).
115 Id.
116 Osborn v. Haley, 549 U.S. 225, 230 (2007). See also 28 U.S.C. § 2679(d)(1)–(2).
117 Osborn, 549 U.S. at 230 (“Upon the Attorney General’s certification” in a case “commenced in state court, the case
is to be removed to a federal district court, and the certification remains ‘conclusive . . . for purposes of removal.’”
(quoting 28 U.S.C. § 2679(d)(2))); id. at 231 (“Once certification and removal are effected, exclusive competence to
adjudicate the case resides in the federal court, and that court may not remand the suit to the state court.”); Hockenberry
v. United States, 42 F.4th 1164, 1170 (10th Cir. 2022)
118 Osborn, 549 U.S. at 231.
119 Id.; Carroll v. Trump, 49 F.4th 759, 755-66 (2d Cir. 2022).
120 Osborn, 549 U.S. at 238.
121 Id. at 252.
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and defenses apply to the suit.”122 Depending on the circumstances, those requirements,
exceptions, and defenses can “absolutely bar [the] plaintiff’s case” against the United States,123 as
explained below.124 Moreover, the individual federal employee remains immune from liability
even when the FTCA “precludes recovery against the Government” itself.125 Thus, under certain
circumstances, the FTCA will shield both the United States and its employees from liability for its
tortious actions, thereby effectively “leav[ing] certain tort victims without any remedy.”126
A plaintiff may sometimes prefer to litigate against the United States rather than against an
individual government employee, especially if the employee does not have enough money to
satisfy a judgment that the court might ultimately render in the plaintiff’s favor.127 Because
government employees may be “under-insured or judgment proof,” they may lack sufficient
assets to “satisfy judgments rendered against them” in tort cases.128 Thus, a plaintiff often does
not object when the Attorney General certifies named defendants as acting within the scope of
their employment at the time of the alleged tort.129 If a plaintiff does not challenge the Attorney
General’s certification, the certification has conclusive effect.130
If a plaintiff successfully obtains a judgment against the United States based on the tortious
conduct of a federal employee, the government may not subsequently sue the culpable employee
to recover the amount of money the government paid to the plaintiff.131 Consequently, if the
government successfully substitutes itself for an individual defendant in an FTCA case, that
substitution may effectively relieve the individual employee from all civil liability for any
allegedly tortious action.132 Because this aspect of the FTCA is particularly favorable for
government employees, if the Attorney General refuses to certify that an employee was acting
within the scope of employment, that employee may at any time before trial petition the district
court for such a certification.133 If the court agrees that the employee was acting within the scope
of employment, then the case proceeds “against the Government, just as if the Attorney General
122 Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008) (citing 28 U.S.C. § 2679(d)(1)).
123 Id. at 417.
124 See infra “Exceptions to the FTCA’s Waiver of Sovereign Immunity.” See Hockenberry, 42 F.4th at 1170
(reflecting that where a claim fails within an exception to the FTCA’s waiver of sovereign immunity, substitution bars
an action, and sovereign immunity does not allow a plaintiff to bring the original federal employee defendant back into
the action).
125 United States v. Smith, 499 U.S. 160, 165 (1991). See Hershkoff, supra note 40, at 201 (explaining that the FTCA
“bars relief against individual employees for torts committed in the course of employment even if the FTCA precludes
relief against the government”).
126 B & A Marine Co. v. Am. Foreign Shipping Co., 23 F.3d 709, 715 (2d Cir. 1994).
127 See id. (“From the plaintiff’s perspective, [the federal government substituting itself as the sole defendant] can
produce a net positive: Although the plaintiff must now litigate against the Federal Government, the original
defendant—a potentially judgment-proof federal employee—has been replaced by the seemingly bottomless U.S.
Treasury.”).
128 Pfander & Aggarwal, supra note 33, at 443 n.133.
129 Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 422 (1995) (“Ordinarily, scope-of-employment certifications
occasion no contest.”).
130 E.g., Doe, 929 F.3d at 160.
131 See Collins v. United States, 564 F.3d 833, 836 (7th Cir. 2009) (“[T]he government, when it is held liable under the
[FTCA], has no right of indemnity from its negligent employee.”).
132 See Osborn v. Haley, 549 U.S. 225, 229 (2007) (explaining that the FTCA “accords federal employees absolute
immunity from common-law tort claims arising out of acts they undertake in the course of their official duties”).
133 Fountain v. Karim, 838 F.3d 129, 133 n.3 (2d Cir. 2016) (citing 28 U.S.C. § 2679(d)(3)).
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had filed a certification.”134 If the court instead finds that the government employee was not
acting within the scope of employment, then the lawsuit may proceed against the government
employee in their personal capacity.135
Exceptions to the FTCA’s Waiver of Sovereign
Immunity
As mentioned above,136 the FTCA imposes significant substantive limitations on the types of tort
lawsuits a plaintiff may permissibly pursue against the United States.137 In enacting the FTCA,
Congress was concerned about “unwarranted judicial intrusion[s] into areas of governmental
operations and policymaking.”138 Congress therefore opted to explicitly preserve the United
States’ sovereign immunity from more than a dozen categories of claims,139 which are set out in
Section 2680 of the FTCA:
“Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation . . . or based upon
the exercise or performance or the failure to exercise or perform a discretionary
function or duty”;140
“Any claim arising out of the loss, miscarriage, or negligent transmission of
letters or postal matter”;141
certain claims arising from the actions of law enforcement officers administering
customs and excise laws;142
134 Harbury v. Hayden, 522 F.3d 413, 416 n.1 (D.C. Cir. 2008) (citing 28 U.S.C. § 2679(d)(3)–(4)).
135 Id.
136 See supra “Background.”
137 See, e.g., Calderon v. United States, 123 F.3d 947, 948 (7th Cir. 1997) (noting that the FTCA’s “waiver of immunity
is far from absolute,” as “many important classes of tort claims are excepted from the Act’s coverage”).
138 Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983).
139 See generally 28 U.S.C. § 2680(a)–(f), (h)–(n). In addition to Section 2680, other provisions of the U.S. Code—as
well as certain judicially created doctrines—also preserve the United States’ immunity from various types of tort suits.
See, e.g., id. § 1346(b)(2) (providing that, notwithstanding the FTCA’s general waiver of sovereign immunity, “no
person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a
civil action against the United States . . . for mental or emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual act”); Laird v. Nelms, 406 U.S. 797, 802–03 (1972) (holding
that the FTCA does “not authorize suit against the Government on claims based on strict liability for ultrahazardous
activity”); United States v. Demko, 385 U.S. 149, 149–54 (1966) (holding that 18 U.S.C. § 4126, which entitles injured
inmates to compensation under specified circumstances, barred injured prisoner from recovering additional damages
under the FTCA); Williamson v. United States, 862 F.3d 577, 578–79 (6th Cir. 2017) (holding that Federal Employees’
Compensation Act precluded plaintiff from obtaining damages under the FTCA). See generally Fuller, supra note 17,
at 381–82 (“Numerous other federal statutes either prohibit or provide their own single mechanism for potential
recovery against the government and thus indirectly prevent claims that would otherwise be cognizable under the
FTCA.”).
140 See 28 U.S.C. § 2680(a). See also infra “The Discretionary Function Exception.”
141 28 U.S.C. § 2680(b). See, e.g., Dolan v. USPS, 546 U.S. 481, 483–92 (2006) (analyzing the scope of Section
2680(b)).
142 See 28 U.S.C. § 2680(c) (providing that, with four specified exceptions, the FTCA does not authorize claims
“arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods,
merchandise, or other property by any officer of customs or excise or any other law enforcement officer”). See also,
e.g., Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 215–28 (2008) (interpreting Section 2680(c)); DaVinci Aircraft, Inc.
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certain admiralty143 claims against the United States for which federal law
provides an alternative remedy;144
claims “arising out of an act or omission of any employee of the Government in
administering” certain provisions of the Trading with the Enemy Act of 1917;145
“Any claim for damages caused by the imposition or establishment of a
quarantine by the United States”;146
certain claims predicated upon intentional torts committed by federal
employees;147
“Any claim for damages caused by the fiscal operations of the Treasury or by the
regulation of the monetary system”;148
“Any claim arising out of the combatant activities of the military or naval forces,
or the Coast Guard, during time of war”;149
“Any claim arising in a foreign country”;150
“Any claim arising from the activities of the Tennessee Valley Authority”;151
“Any claim arising from the activities of the Panama Canal Company”;152 or
“Any claim arising from the activities of a Federal land bank, a Federal
intermediate credit bank, or a bank for cooperatives.”153
If a tort claim against the United States falls within any of these exceptions, the district court
lacks jurisdiction to adjudicate it.154
Some of the exceptions listed above are more doctrinally significant than others.155 The following
sections discuss the most frequently litigated exceptions to the United States’ waiver of immunity
from tort claims.
v. United States, 926 F.3d 1117, 1123–26 (9th Cir.), cert. denied, 2019 WL 5301048 (Oct. 21, 2019) (applying Section
2680(c)’s “detention of goods exception”).
143 “Admiralty” is defined as “the rules governing contract, tort, and workers’-compensation claims arising out of
commerce on or over navigable water.” Admiralty, BLACK’S LAW DICTIONARY (10th ed. 2014).
144 See 28 U.S.C. § 2680(d) (providing that the FTCA does not apply to “[a]ny claim for which a remedy is provided by
chapter 309 or 311 of title 46 relating to claims or suits in admiralty against the United States”).
145 28 U.S.C. § 2680(e). Among other things, the Trading with the Enemy Act “affords the President broad powers to
regulate, license, and prohibit trade with foreign nations.” Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715
F.3d 1268, 1275 (11th Cir. 2013). See generally 50 U.S.C. §§ 4301–41.
146 28 U.S.C. § 2680(f).
147 See id. § 2680(h). See also infra “The Intentional Tort Exception.”
148 28 U.S.C. § 2680(i).
149 Id. § 2680(j). See infra “The Combatant Activities Exception.”
150 28 U.S.C. § 2680(k). See infra “The Foreign Country Exception.”
151 28 U.S.C. § 2680(l). See Thacker v. Tenn. Valley Auth., 139 S. Ct. 1435, 1441 (2019) (“Congress made a
considered decision not to apply the FTCA to the [Tennessee Valley Authority].”) (emphasis omitted).
152 28 U.S.C. § 2680(m). The Panama Canal Treaty of 1977 replaced the Panama Canal Company with the Panama
Canal Commission. E.g., Black v. Office of Pers. Mgmt., 641 F. App’x 1007, 1008 (Fed. Cir. 2016) (summary order).
153 28 U.S.C. § 2680(n).
154 See, e.g., DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1123 (9th Cir.), cert. denied, 2019 WL 5301048
(Oct. 21, 2019).
155 See, e.g., Matthews v. United States, Civil No. 07-00030, 2011 WL 3471140, at *2 (D. Guam Aug. 5, 2011), aff’d,
586 F. App’x 366 (9th Cir. 2014) (describing “the discretionary function exception” as “the most frequently litigated”
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The Discretionary Function Exception
Section 2680(a)156—also known as the discretionary function exception157—“preserves the
federal government’s immunity . . . when an employee’s acts involve the exercise of judgment or
choice.”158 Along with being one of the most frequently litigated exceptions to the FTCA’s
waiver of sovereign immunity,159 the discretionary function exception is, according to at least one
commentator, “the broadest and most consequential.”160 For example, the United States has
successfully invoked the discretionary function exception to avoid tort liability in cases involving
exposures to radiation, asbestos, Agent Orange, and the human immunodeficiency virus (HIV).161
The discretionary function exception serves at least two purposes.162 First, the exception
“prevent[s] judicial ‘second-guessing’ of legislative and administrative decisions grounded in
social, economic, and political policy through the medium of an action in tort.”163 According to
one commentator, the Congress that enacted the FTCA viewed such second guessing to be
“inappropriate” because (1) “such judgments are more appropriately left to the political branches
of our governmental system”; and (2) “courts, which specialize in the resolution of discrete
factual and legal disputes,” may not be “equipped to make broad policy judgments.”164 Second,
the discretionary function exception is intended to “protect the Government from liability that
would seriously handicap efficient government operations.”165 By insulating the government from
statutory exception to the FTCA); James R. Levine, The Federal Tort Claims Act: A Proposal for Institutional Reform,
100 COLUM. L. REV. 1538, 1541 (2000) (similar).
156 See 28 U.S.C. § 2680(a) (stating that the FTCA’s waiver of sovereign immunity “shall not apply to . . . [a]ny claim
based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure
to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused”).
157
E.g., Evans v. United States, 876 F.3d 375, 380 (1st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018).
158 E.g., Tsolmon v. United States, 841 F.3d 378, 380 (5th Cir. 2016). For another CRS product analyzing the
discretionary function exception, see CRS Legal Sidebar LSB10355, Can Mass Shooting Victims Sue the United
States?, by Kevin M. Lewis.
159 See, e.g., Hon. Robert C. Longstreth, Does the Two-Prong Test for Determining Applicability of the Discretionary
Function Exception Provide Guidance to Lower Courts Sufficient to Avoid Judicial Partisanship?, 8 U. ST. THOMAS
L.J. 398, 403 (2011) (describing the discretionary function exception as “heavily litigated”); Nelson, supra note 41, at
262 (“The [discretionary function exception] is the most criticized and litigated exception to the FTCA.”).
160 Niles, supra note 16, at 1300. See Sisk, supra note 17, at 301 (“The most important [exception] (in terms of
frequency of assertion by the government, successfully more often than not) is the discretionary function exception.”);
Seamon, supra note 33, at 700–01 (describing the discretionary function exception as “broad,” and as “the most
important exception” to the FTCA’s waiver of sovereign immunity).
161 Seamon, supra note 33, at 694–95. See Clendening v. United States, 19 F.4th 421, 435 (4th Cir. 2021) (“Courts have
frequently found that ‘the [G]overnment’s decision whether to warn about the presence of toxins, carcinogens, or
poisons falls under the discretionary function exception.’”) (quoting Sánchez ex rel. D.R.-S. v. United States, 671 F.3d
86, 101-02 (1st Cir. 2012)).
162 See Niles, supra note 16, at 1307 (“Two basic reasons have been offered to justify the different judicial treatment of
claims challenging discretionary acts, and claims focused on merely ministerial functions.”).
163 Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536–37 (1988) (quoting United States v. S.A. Empresa
de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)) (internal quotation marks omitted).
164 Niles, supra note 16, at 1308. See Seamon, supra note 33, at 703 (explaining that the discretionary function
exception reflects “(1) separation-of-powers concerns and, relatedly, (2) the incompetence of courts, compared to
executive-branch officials, to decide matters of public policy”). See Nieves Martinez v. United States, 997 F.3d 867,
876 (9th Cir. 2021) (“Thus, the exception ‘protects only governmental actions and decisions based on considerations of
public policy.’”)
165 Varig Airlines, 467 U.S. at 814 (quoting United States v. Muniz, 374 U.S. 150, 163 (1963)).
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liability for the discretionary actions of its employees, the discretionary function exception
arguably decreases the likelihood that federal employees will shy away from making sound
policy decisions based on a fear of increasing the government’s exposure to tort liability.166
Relatedly, exposing the United States to liability for discretionary acts could cause government
officials to “spend an inordinate amount of their tax-payer compensated time responding to
lawsuits” rather than serving the “greater good of the community.”167 The discretionary function
exception thus “marks the boundary between Congress’ willingness to impose tort liability upon
the United States and its desire to protect certain governmental activities from exposure to suit by
private individuals.”168
As explained in greater detail below,169 to determine whether the discretionary function exception
bars a particular plaintiff’s suit under the FTCA, courts examine whether the federal employee
was engaged in conduct that was (1) discretionary and (2) policy-driven.170 “If the challenged
conduct is both discretionary and policy-driven,” then the FTCA does not waive the government’s
sovereign immunity with respect to that conduct, and the plaintiff’s FTCA claim must therefore
fail.171 If, by contrast, an official’s action either (1) “does not involve any discretion” or (2)
“involves discretion,” but “does not involve the kind of discretion—consideration of public
policy—that the exception was designed to protect,” then the discretionary function exception
does not bar the plaintiff’s claim.172
Whether the Challenged Conduct Is Discretionary
When first evaluating whether “the conduct that is alleged to have caused the harm” to the
plaintiff “can fairly be described as discretionary,”173 a court must assess “whether the conduct at
issue involves ‘an element of judgment or choice’ by the employee.”174 “The conduct of federal
employees is generally held to be discretionary unless ‘a federal175 statute, regulation, or policy
specifically prescribes a course of action for an employee to follow.’”176 If “the employee has no
rightful option but to adhere to the directive” established by a federal statute, regulation, or
166 See Niles, supra note 16, at 1309 (noting the possibility “that the threat of liability will induce government officials
to make decisions based not on the relevant and applicable policy objectives that should be governing the execution of
their authority, but based rather on” avoiding “possible exposure to substantial civil liability”).
167 Id. at 1310.
168 Varig Airlines, 467 U.S. at 808.
169 See infra “Whether the Challenged Conduct Is Discretionary”; “Whether Policy Considerations Influence the
Exercise of the Employee’s Discretion.”
170 E.g., Gordo-Gonzalez v. United States, 873 F.3d 32, 36 (1st Cir. 2017).
171 Id. See, e.g., Garling v. EPA, 849 F.3d 1289, 1295 (10th Cir. 2017) (“If both elements are met, the governmental
conduct is protected . . . and sovereign immunity bars a claim that involves such conduct.”).
172 Seamon, supra note 33, at 706–07; Foster Logging, Inc. v. United States, 973 F.3d 1152, 1157 (11th Cir. 2020).
173 E.g., Evans v. United States, 876 F.3d 375, 380 (1st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018) (quoting
Fothergill v. United States, 566 F.3d 248, 252 (1st Cir. 2009)).
174 E.g., Pornomo v. United States, 814 F.3d 681, 687 (4th Cir. 2016) (quoting Berkovitz ex rel. Berkovitz v. United
States, 486 U.S. 531, 536 (1988)).
175 “State law will not suffice” to render the discretionary function exception inapplicable; “only federal statutes,
regulations, or policies will suffice to . . . divest the federal government of its sovereign immunity.” Evans, 876 F.3d at
381 (emphasis added).
176 Id. (quoting Berkovitz, 486 U.S. at 536). See, e.g., Compart’s Boar Store, Inc. v. United States, 829 F.3d 600, 605
(8th Cir. 2016) (“Government employees act with discretion unless they are following a regulation or policy that is
‘mandatory and . . . clearly and specifically define[s] what the employees are supposed to do.’” (quoting C.R.S. ex rel.
D.B.S. v. United States, 11 F.3d 791, 799 (8th Cir. 1993))).
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policy, “then there is no discretion in the conduct for the discretionary function exception to
protect.”177 Put another way, the discretionary function exception does not insulate the United
States from liability when its employees “act in violation of a statute or policy that specifically
directs them to act otherwise.”178
Even where a federal statute, regulation, or policy pertaining to the challenged action exists, the
action may nonetheless qualify as discretionary if the law in question “predominately uses
permissive rather than mandatory language.”179 In other words, where “a government agent’s
performance of an obligation requires that agent to make judgment calls, the discretionary
function exception” may bar the plaintiff’s claim under the FTCA.180 Notably, “[t]he presence of
a few, isolated provisions cast in mandatory language” in a federal statute, regulation, or policy
“does not transform an otherwise suggestive set of guidelines into binding” law that will defeat
the discretionary function exception.181 “Even when some provisions of a policy are mandatory,
governmental action remains discretionary if all of the challenged decisions involved ‘an element
of judgment or choice.’”182
The Fourth Circuit’s decision in Rich v. United States183 exemplifies how courts evaluate whether
a federal employee has engaged in discretionary conduct. The plaintiff in Rich—a federal inmate
stabbed by members of a prison gang—attempted to file an FTCA suit alleging that the Bureau of
Prisons (BOP) should have housed him separately from the gang members.184 Federal law
permitted—but did not affirmatively require—BOP “to separate certain inmates from others
based on their past behavior.”185 Because federal law empowered prison officials to “consider
several factors and exercise independent judgment in determining whether inmates may require
separation,” the Rich court held that BOP’s decision whether or not to separate an inmate from
others was discretionary in nature and therefore outside the scope of the FTCA.186
177 Berkovitz, 486 U.S. at 536.
178 Tsolmon v. United States, 841 F.3d 378, 384 (5th Cir. 2016). See, e.g., Sanders v. United States, 937 F.3d 316, 330
(4th Cir. 2019) (holding that discretionary function exception did not apply where agency employee allegedly “failed to
comply with the mandatory directives in” the agency’s standard operating procedures); Collins v. United States, 564
F.3d 833, 840 (7th Cir. 2009) (“If a statute or regulation or other directive intended to be binding forbids the specific
act contended to have been negligent, the employee who committed the act was not exercising authorized discretion.”).
179 Compart’s Boar Store, 829 F.3d at 605 (quoting Herden v. United States, 726 F.3d 1042, 1047 (8th Cir. 2013)).
180 Gonzalez v. United States, 814 F.3d 1022, 1029 (9th Cir. 2016) (citing Conrad v. United States, 447 F.3d 760, 765–
66 (9th Cir. 2006); Ochran v. United States, 117 F.3d 495, 500-01 (11th Cir. 1997); and Kelly v. United States, 924
F.2d 355, 358, 360–61 (1st Cir. 1991)).
181 Gonzalez, 814 F.3d at 1030 (quoting Sabow v. United States, 93 F.3d 1445, 1453 (9th Cir. 1996)). See Lam v.
United States, 979 F.3d 665, 677 (9th Cir. 2020) (“This decision teaches the importance of analyzing policies that
contain mandatory words in their overall context.”).
182 Compart’s Boar Store, 829 F.3d at 605 (quoting Hart v. United States, 630 F.3d 1085, 1086 (8th Cir. 2011)).
183 811 F.3d 140 (4th Cir. 2015).
184 See id. at 141–42.
185 See id. at 145 (analyzing 28 C.F.R. § 524.72).
186 Id. See also Rinaldi v. United States, 904 F.3d 257, 273 (3d Cir. 2018) (“[H]ousing and cellmate assignments
unquestionably involve an ‘element of judgment or choice.’” (quoting United States v. Gaubert, 499 U.S. 315, 322
(1991))); Cohen v. United States, 151 F.3d 1338, 1343 (11th Cir. 1998) (“Congress intended to give the BOP discretion
in making its classification decisions and determinations about placement of prisoners.”); Calderon v. United States,
123 F.3d 947, 950 (7th Cir. 1997) (holding that BOP’s “decision not to separate” two inmates “is properly classified as
a discretionary act”). But see Parrott v. United States, 536 F.3d 629, 638 (7th Cir. 2008) (concluding that once “a valid
separation order” separating two inmates “is in effect, there is no discretion left” for the discretionary function
exception to protect).
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By contrast, in the Supreme Court case of Berkovitz ex rel. Berkovitz v. United States, the
discretionary function exception did not shield the United States from liability.187 The plaintiff in
Berkovitz alleged that the federal government issued a license to a vaccine manufacturer “without
first receiving data that the manufacturer must submit showing how the product . . . matched up
against regulatory safety standards,” as required by federal law.188 After the plaintiff allegedly
contracted polio from a vaccine produced by that manufacturer, the plaintiff sued the United
States under the FTCA.189 Because “a specific statutory and regulatory directive” divested the
United States of any “discretion to issue a license without first receiving the required test data,”
the Court held that “the discretionary function exception impose[d] no bar” to the plaintiff’s
claim.190
Courts have disagreed on whether the discretionary function exception shields tortious conduct
that allegedly violates the U.S. Constitution, as contrasted with a federal statute, regulation, or
policy. Most courts191 have held that “the discretionary-function exception . . . does not shield
decisions that exceed constitutional bounds, even if such decisions are imbued with policy
considerations.”192 These courts reason that “[t]he government has no discretion to violate the
Federal Constitution; its dictates are absolute and imperative.”193 By contrast, a minority of courts
187 See 486 U.S. 531, 542–43 (1988).
188 Id. at 542.
189 Id. at 533.
190 Id. at 532, 542–43.
191 See, e.g., Loumiet v. United States, 828 F.3d 935, 939 (D.C. Cir. 2016) (“We conclude, in line with the majority of
our sister circuits to have considered the question, that the discretionary-function exception does not categorically bar
FTCA tort claims where the challenged exercise of discretion allegedly exceeded the government’s constitutional
authority to act.”) (emphasis added).
192 Id. at 944. See, e.g., Limone v. United States, 579 F.3d 79, 101 (1st Cir. 2009) (“[T]he discretionary function
exception does not . . . shield conduct that transgresses the Constitution.”); Raz v. United States, 343 F.3d 945, 948 (8th
Cir. 2003) (concluding that government’s actions “f[e]ll outside the FTCA’s discretionary-function exception because
[the plaintiff] alleged they were conducted in violation of [the Constitution]”); Medina v. United States, 259 F.3d 220,
225 (4th Cir. 2001) (“[F]ederal officials do not possess discretion to violate constitutional rights . . . .” (quoting U.S.
Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988))); Nurse v. United States, 226 F.3d 996, 1002 n.2
(9th Cir. 2000) (“The Constitution can limit the discretion of federal officials such that the FTCA’s discretionary
function exception will not apply.”).
That is not to say that these courts permit FTCA claims against the United States predicated solely on violations of
federal constitutional law. The Supreme Court has squarely held that “the United States . . . has not rendered itself
liable under [the FTCA] for constitutional tort claims.” FDIC v. Meyer, 510 U.S. 471, 478 (1994). Rather, the abovecited cases hold that the discretionary function exception will not bar a state law tort claim against the United States
when a government employee also violates the U.S. Constitution in the course of committing that tort. See Loumiet,
828 F.3d at 945–46 (“A plaintiff who identifies constitutional defects in the conduct underlying her FTCA tort claim . .
. may affect the availability of the discretionary-function defense, but she does not thereby convert an FTCA claim into
a constitutional damages claim against the government; state law is necessarily still the source of the substantive
standard of FTCA liability.”); Limone, 579 F.3d at 102 n.13 (“[W]e do not view the FBI’s constitutional transgressions
as corresponding to the plaintiffs’ causes of action—after all, the plaintiffs’ claims are not Bivens claims [against
individual federal officers alleging violations of the Constitution]—but rather, as negating the discretionary function
defense.”). That said, some judges have doubted whether there is a coherent distinction between (1) a federal
constitutional tort claim and (2) a claim that a federal employee violated the U.S. Constitution in the course of
committing a state law tort. See Castro v. United States, 560 F.3d 381, 394 (5th Cir.) (Smith, J., dissenting) (“It is
difficult to conceive of a violation of a constitutional right that does not also give rise to a state [law] cause of action
. . . . Under the majority’s framework, by a plaintiff’s artful pleading, the United States can be liable whenever the
Constitution is violated even though, under Meyer, the sovereign is not subject to liability for constitutional torts.”),
rev’d en banc, 608 F.3d 266 (5th Cir. 2010).
193 Loumiet, 828 F.3d at 944 (internal quotations omitted); U.S. Fid. & Guar. Co., 837 F.2d at 120 (“[C]onduct cannot
be discretionary if it violates the Constitution.”).
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have instead concluded that the discretionary function exception shields actions “based upon [the]
exercise of discretion” even if they are “constitutionally repugnant.”194 These courts base that
conclusion on the text of 28 U.S.C. § 2680(a), which purports to shield discretionary judgments
even when a government employee abuses his discretion.195 Still other courts have declined to
take a side on this issue.196
Whether Policy Considerations Influence the Exercise of the Employee’s
Discretion
If the allegedly tortious conduct that injured the plaintiff was discretionary, the court must then
proceed to the second prong of its analysis, evaluating “whether the exercise or non-exercise of
the granted discretion is actually or potentially influenced by policy considerations”197—that is,
whether the challenged action “implicate[s] social, economic, [or] policy judgments.”198 As the
Supreme Court has recognized, the discretionary function exception “protects . . . only
governmental actions and decisions based on considerations of public policy.”199 For instance, if a
given decision requires a federal employee to “balance competing interests”200—such as weighing
the benefits of a particular public safety measure against that measure’s financial costs201—then
that decision is likely susceptible to policy analysis within the meaning of the discretionary
function exception.202
When applying the second prong of the discretionary function exception, courts employ an
objective rather than a subjective standard.203 Courts therefore “do not examine . . . ‘whether
194 See Shivers v. United States, 1 F.4th 924, 930 (11th Cir. 2021) (“Congress could have adopted language that carved
out certain behavior from this exception—for example, grossly negligent behavior, intentional behavior, or behavior
that rises to the level of a constitutional violation. But Congress did not do so.”); Kiiskila v. United States, 466 F.2d
626, 627–28 (7th Cir. 1972). See also Linder v. United States, 937 F.3d 1087, 1090 (7th Cir. 2019) (“[T]he theme that
‘no one has discretion to violate the Constitution’ has nothing to do with the [FTCA], which does not apply to
constitutional violations.”).
195 See Kiiskila, 466 F.2d at 628 (“28 U.S.C. § 2680(a) precludes action for abuse of discretionary authority whether
through negligence or wrongfulness.”). See also 28 U.S.C. § 2680(a) (stating that the discretionary function exception
applies “whether or not the discretion involved be abused”).
196 See Doe v. United States, 831 F.3d 309, 319–20 (5th Cir. 2016) (“Whether a properly pled constitutional violation
allows a plaintiff to circumvent the discretionary function exception is an open question in this circuit. Because we
conclude the plaintiffs did not sufficiently plead [a constitutional violation], we need not settle the issue of whether a
constitutional violation removes the applicability of the discretionary function exception.”); Doe KS v. United States,
Case No. 17-2306, 2017 WL 6039536, at *4 (D. Kan. Dec. 5, 2017) (“Assuming—without holding—that the majority
of appellate courts are correct about FTCA liability for exceeding constitutional authority . . . .”) (emphasis added).
197 E.g., Evans v. United States, 876 F.3d 375, 380 (1st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018) (quoting
Fothergill v. United States, 566 F.3d 248, 252 (1st Cir. 2009)).
198 E.g., Gonzalez v. United States, 814 F.3d 1022, 1033 (9th Cir. 2016).
199 Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 537 (1988).
200 E.g., Compart’s Boar Store, Inc. v. United States, 829 F.3d 600, 605 (8th Cir. 2016) (quoting Herden v. United
States, 726 F.3d 1042, 1050 (8th Cir. 2013)).
201 See Morales v. United States, 895 F.3d 708, 716 (9th Cir. 2018) (“We reject the suggestion that the government
cannot invoke the discretionary function exception whenever a decision involves considerations of public safety . . . . In
case after case, we have considered the government’s balancing of public safety with a multitude of other factors.”).
202 See, e.g., Croyle ex rel. Croyle v. United States, 908 F.3d 377, 382 (8th Cir. 2018) (“Balancing safety, reputational
interests, and confidentiality is the kind of determination ‘the discretionary function exception was designed to
shield.’”) (quoting Berkovitz, 486 U.S. at 536).
203 See, e.g., Gonzalez, 814 F.3d at 1032 (“In determining if the conduct involves policy judgment, we do not look to an
agent’s subjective weighing of policy considerations.”); Cohen v. United States, 151 F.3d 1338, 1341 (11th Cir. 1998)
(“[W]e do not focus on the subjective intent of the government employee or inquire whether the employee actually
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policy considerations were actually contemplated in making the decision’”204—that is, “[t]he
decision need not actually be grounded in policy considerations so long as it is, by its nature,
susceptible to a policy analysis.”205 The discretionary function exception “applies ‘even if the
discretion has been exercised erroneously’ and is deemed to have frustrated the relevant policy
purpose.”206 Whether the employee committed negligence in exercising his discretion “is
irrelevant to the applicability of the discretionary function exception.”207 Nor does it matter
whether the allegedly tortious action was undertaken “by low-level government officials [or] by
high-level policymakers.”208 The critical question is whether a decision at issue is “‘susceptible to
policy analysis.”209 The nature of the conduct challenged by the plaintiff—as opposed to the
status of the actor—governs whether the discretionary function exception applies in a given
case.210 As long as the challenged conduct involves the exercise of discretion in furtherance of
some policy goal, the discretionary function exception forecloses claims under the FTCA.211
Conversely, where a subjectively discretionary act does not flow from plausible policy objectives,
that act does not fall within the discretionary function exception.212
If the first element of the discretionary function exception is satisfied, then courts will generally
presume that the second element is satisfied as well.213 The Supreme Court has held that when an
“established governmental policy, as expressed or implied by statute, regulation, or agency
guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s
acts are grounded in policy when exercising that discretion.”214 Nevertheless, a plaintiff may
weighed social, economic, and political policy considerations before acting.” (quoting Ochran v. United States, 117
F.3d 495, 500 (11th Cir. 1997))).
204 Seaside Farm, Inc. v. United States, 842 F.3d 853, 858 (4th Cir. 2016). See also, e.g., Buckler v. United States, 919
F.3d 1038, 1045 (8th Cir. 2019) (“[A]s long as a discretionary decision is susceptible to policy analysis, the
[discretionary function] exception applies whether or not [the] defendant in fact engaged in conscious policybalancing.”) (internal citations and quotation marks omitted); Jude v. Comm’r of Soc. Sec., 908 F.3d 152, 159 (6th Cir.
2018) (“Such ‘social, economic, or political’ policy analysis need not have actually occurred in the disputed instance,
but rather the decision need only have been theoretically susceptible to policy analysis.”).
205 Gonzalez, 814 F.3d at 1028 (quoting GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002)). See,
e.g., Gibson v. United States, 809 F.3d 807, 813 (5th Cir. 2016) (“Our inquiry is ‘not whether the decision maker in
fact engaged in a policy analysis when reaching his decision but instead whether his decision was susceptible to policy
analysis.’” (quoting In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 713 F.3d 807, 810 (5th Cir. 2013))).
206 Pornomo v. United States, 814 F.3d 681, 687–88 (4th Cir. 2016) (quoting Holbrook v. United States, 673 F.3d 341,
350 (4th Cir. 2012)). See also 28 U.S.C. § 2680(a) (providing that the applicability of the discretionary function
exception does not hinge on “whether or not the discretion involved be abused”).
207 Evans v. United States, 876 F.3d 375, 381 (1st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018). See, e.g., Wood v.
United States, 845 F.3d 123, 128 (4th Cir. 2017) (explaining that the discretionary function exception “shield[s]
decisions of a government entity made within the scope of any regulatory policy expressed in statute, regulation, or
policy guidance, even when made negligently”) (emphasis added).
208 Chadd v. United States, 794 F.3d 1104, 1111 (9th Cir. 2015). See also, e.g., Wood, 845 F.3d at 128 (“The analysis
also does not depend on whether the conduct was that of a high-level agency official making policy or a low-level
employee implementing policy.”).
209 Cangemi v. United States, 13 F.4th 115, 133 (2d Cir. 2021).
210 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984).
211 Evans, 876 F.3d at 380 (quoting United States v. Gaubert, 499 U.S. 315, 334 (1991)).
212 See Armstrong v. Reynolds, 22 F.4th 1058, 1083 (9th Cir. 2022) (“The narrow decision to copy [an employer] on a
letter acknowledging the withdrawal of Armstrong’s complaint, by contrast, was made after her first complaint was
closed and before her last complaint was filed or any investigation was conducted, and did not involve such [policy]
considerations.”).
213 Gaubert, 499 U.S. at 324.
214 Id.
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rebut that presumption if “the challenged actions are not the kind of conduct that can be said to be
grounded in the policy of the regulatory regime” at issue in the case.215
Courts assessing the applicability of the discretionary function exception utilize a case-by-case
approach.216 Given the fact-intensive nature of the discretionary function inquiry, “deciding
whether a government agent’s action is susceptible to policy analysis is often challenging.”217
Nevertheless, examples from the caselaw help illustrate which sorts of governmental actions are
susceptible to policy analysis.218 For instance, in the Rich case discussed above,219 the court held
that “prisoner placement and the handling of threats posed by inmates against one another are
‘part and parcel of the inherently policy-laden endeavor of maintaining order and preserving
security within our nation’s prisons.’”220 The court explained that “factors such as available
resources, proper classification of inmates, and appropriate security levels are ‘inherently
grounded in social, political, and economic policy.’”221 Accordingly, the court held that BOP’s
decision to house the plaintiff with inmates who ultimately attacked him was susceptible to policy
analysis, such that the discretionary function exception shielded the United States from
liability.222
By contrast, courts have held that decisions motivated solely by laziness or careless inattention
“do not reflect the kind of considered judgment ‘grounded in social, economic, and political
policy’” that the discretionary function exception is intended to shield from judicial secondguessing.223 For example, the discretionary function exception does not shield “[a]n inspector’s
decision (motivated simply by laziness) to take a smoke break rather than inspect” a machine that
malfunctions and injures the plaintiff.224 Courts have similarly held that allowing toxic mold to
grow on food served at the commissary on a naval base is not a decision influenced by social,
economic, or political policy, and that, as a result, the discretionary function exception does not
bar a plaintiff sickened by that mold from suing the United States.225
215 Id. at 324–25.
216 E.g., Hajdusek v. United States, 895 F.3d 146, 150 (1st Cir. 2018) (quoting Shansky v. United States, 164 F.3d 688,
693 (1st Cir. 1999)).
217 Id. at 151.
218 See, e.g., Croyle ex rel. Croyle v. United States, 908 F.3d 377, 381-82 (8th Cir. 2018) (“‘[T]he decision to warn is,
at its core, a policy decision.’ Likewise, supervising employees typically involves policy considerations.”) (internal
citations omitted).
219 See supra “Whether the Challenged Conduct Is Discretionary.”
220 Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015) (quoting Cohen v. United States, 151 F.3d 1338, 1344
(11th Cir. 1998)).
221 Id. at 146 (quoting Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 796 (8th Cir. 1998)).
222 Id. See Rinaldi v. United States, 904 F.3d 257, 274 (3d Cir. 2018) (“[T]he District Court correctly concluded that
housing and cellmate assignments are ‘of the kind that the discretionary function exception was designed to shield.’”
(quoting Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000))); Cohen, 151 F.3d at 1345 (concluding that
federal law “does not render the discretionary function exception inapplicable to cases . . . in which a prisoner attacks
another prisoner”); Calderon v. United States, 123 F.3d 947, 951 (7th Cir. 1997) (“[B]alancing the need to provide
inmate security with the rights of the inmates to circulate and socialize within the prison involves considerations based
upon public policy.”).
223 Coulthurst v. United States, 214 F.3d 106, 111 (2d Cir. 2000) (quoting United States v. S.A. Empresa de Viacao
Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)).
224 Id. at 110–11 (citing United States v. Gaubert, 499 U.S. 315, 323 (1991)). See also Palay v. United States, 349 F.3d
418, 432 (7th Cir. 2003).
225 See Whisnant v. United States, 400 F.3d 1177, 1179, 1183 (9th Cir. 2005).
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The Intentional Tort Exception
Another exception to the FTCA’s waiver of sovereign immunity is known as the “intentional tort
exception.”226 An intentional tort occurs “when the defendant acted with the intent to injure the
plaintiff or with substantial certainty that his action would injure the plaintiff.”227 A familiar
example of an intentional tort is battery—that is, purposeful harmful or offensive physical contact
with another person.228 Subject to a significant proviso discussed below,229 the intentional tort
exception generally230 preserves the United States’ immunity against claims arising out of
assault;
battery;
false imprisonment;
false arrest;
malicious prosecution;
abuse of process;
libel;
slander;
misrepresentation;
deceit; or
interference with contract rights.231
The Supreme Court has observed that this list “does not remove from the FTCA’s waiver all
intentional torts” and that the list includes “certain torts . . . that may arise out of negligent”—and
therefore unintentional—“conduct.”232 Thus, while the phrase “intentional tort exception”
provides a suitable “shorthand description” of the exception’s scope, that moniker is, according to
the Supreme Court, “not entirely accurate.”233
226 See, e.g., Levin v. United States, 568 U.S. 503, 507 (2013) (“We have referred to [28 U.S.C.] § 2680(h) as the
‘intentional tort exception.’” (quoting United States v. Shearer, 473 U.S. 52, 54 (1985))); see also Dickson v. United
States, 11 F.4th 308, 313-14 (5th Cir. 2021) (citing 28 U.S.C. § 2680(h)).
227 Kenneth J. Vandevelde, A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort, 19
HOFSTRA L. REV. 447, 447 (1990). See Nancy J. Moore, Intent and Consent in the Tort of Battery: Confusion and
Controversy, 61 AM. U. L. REV. 1585, 1587 (2012) (noting the “distinction between the intentional torts, such as
battery, assault, and false imprisonment, and the non-intentional torts, such as the negligent infliction of physical or
emotional harm and strict liability for defective products and abnormally dangerous activities”).
228 See, e.g., RESTATEMENT (SECOND) OF TORTS § 13.
229 See infra “The Exception to the Intentional Tort Exception: The Law Enforcement Proviso.”
230 But see Levin, 568 U.S. at 518 (holding that another federal statute, 10 U.S.C. § 1089(e), “abrogates the FTCA’s
intentional tort exception” with respect to torts committed by specified classes of government employees).
231 28 U.S.C. § 2680(h).
232 Levin, 568 U.S. at 507 n.1. See also Fuller, supra note 17, at 379–80 (observing “that the label ‘intentional tort
exception’ is something of a misnomer” because § 2680(h) not only (1) “excludes some torts that courts have held need
not always be intentional;” but also (2) “fails to include all intentional torts in the list of excluded causes of action”);
Sisk, supra note 17, at 304 (“This exception . . . includes most intentional torts (but perhaps not all, as trespass,
conversion, invasion of privacy, and intentional infliction of emotional distress are not listed).”).
233 Levin, 568 U.S. at 507 n.1.
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The FTCA’s “legislative history contains scant commentary” discussing Congress’s rationale for
exempting these categories of torts from the FTCA’s waiver of sovereign immunity.234 At least
some Members of the Congress that first enacted the FTCA appeared to believe that (1) “it would
be ‘unjust’ to make the government liable” for the intentional torts of its employees,235 and (2)
“exposing the public fisc to potential liability for assault, battery, and other listed torts would be
‘dangerous,’ based on the notion that these torts are both easy for plaintiffs to exaggerate and
difficult to defend against.”236
The intentional tort exception has shielded the United States from liability for serious acts of
misconduct allegedly committed by federal officers. In a particularly high-profile example,237 a
group of women who were allegedly sexually assaulted by naval officers at the 1991 Tailhook
Convention sued the United States under the FTCA “for the sexual assaults and batteries
allegedly perpetrated by Naval officers at the Convention social events.”238 The court ultimately
ruled that the intentional tort exception defeated the plaintiffs’ claims against the United States, as
the alleged sexual assaults constituted intentionally tortious acts.239
The Exception to the Intentional Tort Exception:240 The Law Enforcement
Proviso
The intentional tort exception contains a carveout known as the “law enforcement proviso”241 that
renders the United States potentially liable for certain intentional torts committed by federal
investigative or law enforcement officers.242 Congress added this proviso in 1974 “in response to
widespread publicity over abuse of powers by federal law enforcement officers.”243 Only the
following torts fall within the law enforcement proviso’s ambit:
assault;
battery;
false imprisonment;
false arrest;
abuse of process; and
malicious prosecution.244
234 Fuller, supra note 17, at 383–84.
235 Id. at 384.
236 Id.
237 See supra “.”
238 Hallett v. U.S. Dep’t of Navy, 850 F. Supp. 874, 878 (D. Nev. 1994).
239 Id. at 877–78.
240 See Fuller, supra note 17, at 385.
241 See, e.g., Millbrook v. United States, 569 U.S. 50, 52 (2013) (using the phrase).
242 28 U.S.C. § 2680(h).
243 Gregory C. Sisk, Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity, 92 N.C. L. REV.
1245, 1305 (2014). See also Nguyen v. United States, 556 F.3d 1244, 1255–56 (11th Cir. 2009) (discussing the law
enforcement proviso’s purpose and legislative history); Caban v. United States, 671 F.2d 1230, 1234 (2d Cir. 1982)
(noting that the enactment of the law enforcement proviso “was triggered by the abusive tactics of federal narcotics
agents who engaged in illegal, unconstitutional ‘no-knock’ raids”); Rosky, supra note 44, at 939–43 (outlining the
proviso’s legislative history).
244 28 U.S.C. § 2680(h).
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To determine whether the proviso applies, a court must assess whether the alleged tortfeasor
qualifies as an “investigative or law enforcement officer[].”245 The FTCA defines that term to
include “any officer of the United States who is empowered by law to” (1) “execute searches,” (2)
“seize evidence,” or (3) “make arrests for violations of Federal law.”246 A court may also employ
definitions of an “officer” in place at the time of the 1974 amendments to the FTCA.247 Thus, to
illustrate, Customs and Border Patrol officers who perform these sorts of law enforcement duties
qualify as investigative or law enforcement officers under the proviso,248 but employees of the
Department of Treasury’s Federal Law Enforcement Training Center who perform primarily
supervisory duties do not.249 At the margins, however, courts sometimes disagree over whether
any particular federal official falls within the proviso’s definition. One appellate court, for
instance, has ruled that Transportation Security Officers (TSOs) employed by the Transportation
Security Administration qualify as “investigative or law enforcement officers” because federal
law empowers TSOs to search luggage and passengers for items prohibited on commercial
aircraft.250 However, a different court, emphasizing that TSOs lack the authority to carry firearms,
make arrests, or seek and execute warrants, has reached the opposite conclusion.251
The law enforcement proviso waives the United States’ immunity only for acts or omissions
committed “while the officer is ‘acting within the scope of his office or employment.’”252 The
underlying tort need not arise while the officer is executing searches, seizing evidence, or making
arrests, however. So long as the officer is acting within the scope of his or her employment at the
time the tort arises, the waiver of sovereign immunity applies.253 To illustrate, the Supreme Court
has held that the intentional tort exception will not necessarily bar a federal prisoner’s claim “that
correctional officers sexually assaulted . . . him while he was in their custody.”254 Assuming that
the correctional officers qualified as law enforcement officers within the meaning of the FTCA255
and were acting within the scope of their employment at the time of the alleged assault, the Court
concluded that the law enforcement proviso rendered the intentional tort exception inapplicable
even if the correctional officers were not specifically engaged in investigative or law enforcement
activity during the assault itself.256
245 See id.
246 Id.
247 Pellegrino v. U.S. Transp. Sec. Admin., 937 F.3d 164, 170 (3d Cir. 2019) (en banc) (applying multiple dictionary
definitions, including Black’s Law Dictionary and Webster’s Third New International Dictionary).
248 See Campos v. United States, 888 F.3d 724, 737 (5th Cir. 2018), cert. denied, 139 S. Ct. 1317 (2019).
249 See Metz v. United States, 788 F.2d 1528, 1532 (11th Cir. 1986).
250 See Pellegrino, 937 F.3d at 167-81. For a CRS product analyzing the Pellegrino case in greater detail, see CRS
Legal Sidebar LSB10363, Is a TSA Screener a “Law Enforcement Officer”? Court Allows Lawsuit Against United
States to Proceed, by Kevin M. Lewis.
251 See Corbett v. Transp. Sec. Admin., 568 F. App’x 690, 701 (11th Cir. 2014).
252 Millbrook v. United States, 569 U.S. 50, 55 (2013) (quoting 28 U.S.C. § 1346(b)(1)). See also Rosky, supra note 44,
at 910 n.49 (noting that the law enforcement proviso “mak[es] federal law enforcement officers the only federal
employees whose intentional torts may give rise to government liability”); supra “Scope of Employment.”
253 Bunch v. United States, 880 F.3d 938, 941 (7th Cir. 2018) (citing Millbrook, 569 U.S. at 55).
254 See Millbrook, 569 U.S. at 51.
255 The Supreme Court expressed no opinion on whether the correctional officers in Millbrook “qualif[ied] as
‘investigative or law enforcement officers’ within the meaning of the FTCA.” See id. at 55 n.3.
256 See id. at 51–57.
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The Foreign Country Exception
As the name suggests, the “foreign country exception”257 to the FTCA preserves the United
States’ sovereign immunity against “any claim arising in a foreign country.”258 The Supreme
Court has interpreted this exception to “bar[] all claims based on any injury suffered in a foreign
country, regardless of where the tortious act or omission occurred.”259 For instance, courts
“routinely” hold that conduct occurring on an American military base in a foreign country falls
within the exception.260 The exception “ensure[s] that the United States is not exposed to
excessive liability under the laws of a foreign country over which it has no control,” as could
potentially occur if the United States made itself liable to the same extent as any private citizen
who commits a tort in that country.261
The 2017 case of S.H. ex rel. Holt v. United States illustrates how courts apply the foreign country
exception in practice.262 In that case, a family attempted to sue the United States pursuant to the
FTCA, alleging that U.S. Air Force (USAF) officials in California “negligently approved the
family’s request for command-sponsored travel to a [USAF] base in Spain” with substandard
medical facilities.263 When the mother ultimately gave birth prematurely in Spain,264 her daughter
was injured during birth.265 After the family returned to the United States, American doctors
diagnosed the daughter with cerebral palsy resulting from her premature birth.266 The court
concluded that, because the daughter’s birth injury arose in Spain, the foreign country exception
barred the family’s FTCA claim even though doctors did not diagnose the daughter with cerebral
palsy until after the family returned the United States.267 To support its conclusion, the court
reasoned that, for the purposes of the foreign country exception, “an injury is suffered where the
harm first ‘impinge[s]’ upon the body, even if it is later diagnosed elsewhere.”268
The Military Exceptions
Two exceptions preserve the federal government’s immunity as to certain torts arising from the
United States’ military activities. Congress created one exception, the combatant activities
exception, in the FTCA’s text. The Supreme Court created the other exception by way of the
Feres doctrine.
The Combatant Activities Exception
The first exception, codified at 28 U.S.C. § 2680(j), preserves the United States’ immunity from
“[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast
257 See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004) (using the phrase “foreign country exception”).
258 28 U.S.C. § 2680(k).
259 Sosa, 542 U.S. at 712 (emphasis added).
260 See Doe v. Meron, 929 F.3d 153, 167 (4th Cir. 2019) (collecting cases).
261 E.g., Nurse v. United States, 226 F.3d 996, 1003 (9th Cir. 2000).
262 853 F.3d 1056, 1057–63 (9th Cir. 2017).
263 Id. at 1058.
264 Id.
265 Id.
266 Id. at 1059.
267 Id. at 1063.
268 Id. at 1058 (quoting RESTATEMENT (FIRST) CONFLICT OF LAWS § 377, n.1 (1934)).
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Guard, during time of war.”269 Although the FTCA’s legislative history casts little light on the
purpose and intended scope of the combatant activities exception,270 courts have generally
inferred that “the policy embodied by the combatant activities exception is . . . to preempt state or
foreign regulation of federal wartime conduct and to free military commanders from the doubts
and uncertainty inherent in potential subjection to civil suit.”271
The 1996 case of Clark v. United States illustrates how the combatant activities exception
operates in practice.272 The plaintiff in Clark—a U.S. Army sergeant who served in Saudi Arabia
during Operation Desert Storm—conceived a child with his wife after he returned home to the
United States.273 After the child manifested serious birth defects, the sergeant sued the United
States, claiming that his “exposure to the toxins he encountered while serving in Saudi Arabia”
during Operation Desert Storm “combined with the medications and shots he received from the
U.S. Army” caused his child to be born with significant injuries.274 The court concluded that,
because a state of war existed during Operation Desert Storm, the sergeant’s claims arose “out of
wartime activities by the military” and were therefore barred by the combatant activities
exception.275
The 2021 case Badilla v. Midwest Air Traffic Control Service, Inc. further clarifies enforcement of
this exception.276 That case concerned a lawsuit against a military subcontractor providing air
traffic control services at Kabul Afghanistan International Airport.277 The plaintiffs, the estates of
the pilots and crew of a civilian flight that crashed into a nearby mountain, alleged that the
subcontractor negligently provided the flight with instructions that put it on a collision course
with the mountain.278 The court held that the combatant activities exception does not preempt
state-law claims against military contractors unless the claim arises out of the contractor’s
involvement in the military’s combatant activities, and the military specifically authorized or
directed the action that generated the lawsuit.279 Under that standard, the exception did not apply
to the defendant in Badilla because the military did not authorize the air traffic controller’s
decision to cancel the civilian flight’s clearance to land.280
269 28 U.S.C. § 2680(j); see Moore v. Elec. Boat Corp., 25 F.4th 30, 38 (1st Cir. 2022) (determining that a company that
built and maintained submarines used by the Navy during wartime had presented at least a colorable argument for the
applicability of the combatant activities exception).
270 See, e.g., Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 479 (3d Cir. 2013) (“The [FTCA] does not
explicitly state the purpose of the [combatant activities] exception, nor does legislative history exist to shed light on
it.”); Saleh v. Titan Corp., 580 F.3d 1, 7 (D.C. Cir. 2009) (“The legislative history of the combatant activities exception
is ‘singularly barren.’” (quoting Johnson v. United States, 170 F.2d 767, 769 (9th Cir. 1948))).
271 Saleh, 580 F.3d at 7. See, e.g., Harris, 724 F.3d at 480 (“The purpose underlying § 2680(j) therefore is to foreclose
state regulation of the military’s battlefield conduct and decisions.”).
272 See 974 F. Supp. 895 (E.D. Tex. 1996).
273 Id. at 896.
274 Id.
275 Id. at 898. In the alternative, the court also determined that the Feres doctrine barred the sergeant’s claims. See id. at
897. See also infra “The Feres Doctrine.”
276 8 F.4th 105 (2d Cir. 2021).
277 Id. at 111-20.
278 Id.
279 Id. at 128.
280 Id. at 129-30.
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The Feres Doctrine
In addition to the exceptions to liability explicitly enumerated in Section 2680, the Supreme
Court has also articulated an additional exception to the United States’ waiver of sovereign
immunity known as the Feres doctrine.281 This doctrine derives its name from the 1950 case
Feres v. United States, in which several active duty servicemembers (or their executors)
attempted to assert a variety of tort claims against the United States.282 The executor for one of
the servicemembers who died in a fire at a military facility, for instance, claimed that the United
States had negligently caused the servicemember’s death by “quartering him in barracks known
or which should have been known to be unsafe because of a defective heating plant” and by
“failing to maintain an adequate fire watch.”283 The second plaintiff claimed that an Army
surgeon negligently left a 30-by-18-inch towel in his stomach during an abdominal operation.284
The executor of a third servicemember alleged that army surgeons administered “negligent and
unskillful medical treatment” that resulted in the servicemember’s death.285 The Supreme Court
dismissed all three claims, holding “that the Government is not liable under the [FTCA] for
injuries to [military] servicemen where the injuries arise out of or are in the course of activity
incident to [military] service.”286
The Feres doctrine thus “applies broadly”287 to render the United States immune from tort
liability resulting from virtually “all injuries suffered by military personnel that are even remotely
related to the individual’s status as a member of the military.”288 For instance, courts have
frequently barred active duty servicemembers from suing the United States for medical
malpractice allegedly committed by military doctors.289
281 Feres v. United States, 340 U.S. 135, 146 (1950). See, e.g., United States v. Johnson, 481 U.S. 681, 692 (1987)
(reaffirming Feres). See generally CRS Legal Sidebar LSB10305, The Feres Doctrine: Congress, the Courts, and
Military Servicemember Lawsuits Against the United States, by Kevin M. Lewis.
282 Feres, 340 U.S. at 136-37.
283 Id.
284 Id. at 137.
285 Id.
286 Id. at 146.
287 Ortiz v. United States ex rel. Evans Army Cmty. Hosp., 786 F.3d 817, 821 (10th Cir. 2015) (quoting Pringle v.
United States, 208 F.3d 1220, 1223–24 (10th Cir. 2000)). See, e.g., Purcell v. United States, 656 F.3d 463, 465 (7th
Cir. 2011) (opining that the Feres doctrine “has been interpreted increasingly broadly over time”); Dreier v. United
States, 106 F.3d 844, 848 (9th Cir. 1996) (“[C]ourts applying the Feres doctrine have given a broad reach to Feres’
‘incident to service’ test.”).
288 Ortiz, 786 F.3d at 821 (quoting Pringle, 208 F.3d at 1223–24). See, e.g., Dreier, 106 F.3d at 848 (noting that Feres
may bar recovery even “for injuries that at first blush may not have appeared to be closely related to [the plaintiff’s]
military service or status”).
289
See, e.g., Daniel v. United States, 889 F.3d 978, 981 (9th Cir. 2018), cert. denied, 139 S. Ct. 1713 (2019) (“[O]ur
cases have consistently applied the Feres doctrine to bar medical malpractice claims predicated on treatment provided
at military hospitals to active duty service members . . . .”); Cutshall v. United States, 75 F.3d 426, 427 (8th Cir. 1996)
(concluding that Feres barred corporal’s claim that Navy doctors failed to promptly detect corporal’s cancer).
Significantly, some courts have interpreted the Feres doctrine to also bar certain medical malpractice claims by nonservicemember third parties. See, e.g., Ortiz, 786 F.3d at 824 (holding that if an injury to a civilian “has its origin in an
incident-to-service injury to a service member, . . . then Feres applies as a bar to the third-party claim, just as it would
to a claim by the service member for his or her injuries”). For example, some courts have held that, under certain
circumstances, the Feres doctrine renders the United States “immune from damages for injuries its agents caused to an
active-duty servicewoman’s baby during childbirth,” even though that baby was not a member of the military. E.g., id.
at 818. See generally Tara Willke, Commentary, Three Wrongs Do Not Make a Right: Federal Sovereign Immunity,
The Feres Doctrine, and the Denial of Claims Brought by Military Mothers and Their Children for Injuries Sustained
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The Feres doctrine is not expressly codified in the FTCA.290 Instead, courts have justified Feres
on the ground that subjecting the United States to liability for tort claims arising out of military
service could “disrupt the unique hierarchical and disciplinary structure of the military.”291
According to the Supreme Court, “complex, subtle, and professional decisions as to the
composition, training, and . . . control of a military force are essentially professional military
judgments.”292 In the Supreme Court’s view, requiring federal courts to adjudicate “suits brought
by service members against the Government for injuries incurred incident to service” would
thereby embroil “the judiciary in sensitive military affairs at the expense of military discipline
and effectiveness.”293 The Supreme Court also substantiated the Feres doctrine with the fact that
the government already implements a uniform system for compensating and providing services to
servicemembers harmed in the course of their duties.294 In the Supreme Court’s view, Congress
would have adjusted the aforementioned benefits if it had intended the FTCA to “permit recovery
for injuries incident to military service.”295
As discussed in greater detail below,296 the Feres doctrine has been the subject of significant
debate.297 Despite opportunities and invitations to overturn or confine its holding in Feres,298 the
Pre-Birth, 2016 WIS. L. REV. 263, 263 (2016) (“Through the application of the judicially created Feres doctrine, female
service members who suffer injuries during pregnancy or the birthing process as a result of military medical
malpractice are barred from seeking recovery under the [FTCA] and, depending on the jurisdiction in which the
negligent medical treatment occurs, their children may also be barred from seeking recovery for the injuries they
sustain as the result of the negligent prenatal medical care.”). But see Brown v. United States, 462 F.3d 609, 614 (6th
Cir. 2006) (concluding that Feres is “inapplicable to suits for negligent prenatal care affecting only the health of the
fetus” and not the health of the servicemember mother).
290 See, e.g., United States v. Johnson, 481 U.S. 681, 693 (1987) (Scalia, J., dissenting) (“Read as it is written, [the
FTCA’s] language renders the United States liable to all persons, including servicemen, injured by the negligence of
Government employees. Other provisions of the Act set forth a number of exceptions, but none generally precludes
FTCA suits brought by servicemen.”); Patrick J. Austin, Incident to Service: Analysis of the Feres Doctrine and its
Overly Broad Application to Service Members Injured by Negligent Acts Beyond the Battlefield, 14 APPALACHIAN J.L.
1, 3 (2014) (“[T]he FTCA does not contain ‘incident to service’ language.”); Maj. Thomas R. Folk, The Administrative
Procedure Act and the Military Departments, 108 MIL. L. REV. 135, 154 (1985) (“The Supreme Court has repeatedly
recognized [the Feres] exception to the FTCA . . . despite the FTCA’s failure to mention such an exception with other
explicit exceptions applicable to activities by the armed forces.”).
Although the FTCA does contain a provision preserving the government’s immunity from “any claim arising out of the
combatant activities of the military or naval forces, or the Coast Guard, during time of war,” see 28 U.S.C. § 2680(j),
that exception is not coextensive with the Feres doctrine as articulated by the Supreme Court. See, e.g., Matthew v.
United States, 452 F. Supp. 2d 433, 444 (S.D.N.Y. 2006) (“The statutory exemption in 28 U.S.C. § 2680(j) applies to a
much narrower set of circumstances than the Feres doctrine . . . .”).
291 Ortiz, 786 F.3d at 821. See, e.g., Wetherill v. Geren, 616 F.3d 789, 793 (8th Cir. 2010) (“Underlying Feres was a
recognition of ‘the peculiar and special relationship of the soldier to his superiors, [and] the effects on the maintenance
of [FTCA] suits on discipline.’”) (quoting Chappell v. Wallace, 462 U.S. 296, 299 (1983)).
292 United States v. Shearer, 473 U.S. 52, 58 (1985) (alteration in original) (quoting Chappell, 462 U.S. at 302).
293 United States v. Johnson, 481 U.S. 681, 690 (1987) (quoting Shearer, 473 U.S. at 59).
294 Feres v. United States, 340 U.S. 135, 144 (1950).
295 Id.
296 See infra “Proposals to Abrogate or Modify Feres.”
297 See, e.g., Johnson, 481 U.S. at 700 (Scalia, J., dissenting) (arguing that “Feres was wrongly decided and heartily
deserves the ‘widespread, almost universal criticism’ it has received” (quoting In re Agent Orange Prod. Liab. Litig.,
580 F. Supp. 1242, 1246 (E.D.N.Y. 1984))); Ortiz, 786 F.3d at 818 (stating that, “[i]n the many decades since its
inception, criticism of the so-called Feres doctrine has become endemic”); Ritchie v. United States, 733 F.3d 871, 878
(9th Cir. 2013) (“We can think of no other judicially-created doctrine which has been criticized so stridently, by so
many jurists, for so long [as the Feres doctrine].”).
298 See, e.g., Johnson, 481 U.S. at 692 (Scalia, J., dissenting) (“I can perceive no reason to accept petitioner’s invitation
to extend [Feres] as the Court does today.”); Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 674 (1977)
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Supreme Court has reaffirmed299 or expanded300 the doctrine on several occasions. Most recently,
on May 20, 2019, the Court denied a petition asking the Court to overrule Feres with respect to
certain types of medical malpractice claims.301 Although the Supreme Court has stated that
Congress may abrogate or modify Feres by amending the FTCA if it so chooses, Congress has
not yet opted to do so.302
Both Congress and lower courts have nonetheless limited the Feres doctrine to certain degrees.
Congress, for its part, did so through the Camp Lejeune Justice Act in 2022.303 Under this act, any
individual, including a veteran, who was exposed to water at Marine Corp Base Camp Lejeune in
North Carolina for 30 days or more between August 1, 1953, and December 31, 1987, can sue the
United States “to obtain appropriate relief for harm that was caused by exposure to the water.”304
Certain guidelines and restrictions apply, however.305
In addition, also in 2022, the Ninth Circuit ruled that the Feres doctrine did not bar a former
servicemember from suing the United States and a former officer for damages resulting from an
alleged sexual assault that took place while the servicemember was on active duty.306 The Ninth
Circuit stated that “we ‘cannot fathom’ how the alleged sexual assault in this case could ever be
considered an activity ‘incident to [military] service.’”307
Other Limitations on Damages Under the FTCA
Apart from the exceptions to the United States’ waiver of sovereign immunity discussed above,308
the FTCA may also limit a plaintiff’s ability to obtain compensation from the federal government
in other ways. Although, as a general matter, the damages that a plaintiff may recover in an FTCA
suit are typically determined by the law of the state in which the tort occurred,309 the FTCA
(Marshall, J., dissenting) (“I do not agree that [Feres’s] extension to cover this case is justified.”).
299 See Johnson, 481 U.S. at 686, 688 (“This Court has never deviated from . . . the Feres bar . . . We decline to modify
the doctrine at this late date.”). See also Shearer, 473 U.S. at 57–59 (concluding that Feres barred plaintiff’s FTCA
claim).
300 See Stencel Aero, 431 U.S. at 673 (“We conclude . . . that the third-party indemnity action in this case is unavailable
for essentially the same reasons that the direct action by Donham is barred by Feres.”).
301 See Petition for Writ of Certiorari, Daniel v. United States, 139 S. Ct. 1713 (2019) (No. 18-460), at i (“Should Feres
be overruled for medical malpractice claims brought under the Federal Tort Claims Act where the medical treatment
did not involve any military exigencies, decisions, or considerations, and where the service member was not engaged in
military duty or a military mission at the time of the injury or death?”); Daniel v. United States, 139 S. Ct. 1713, 1713
(2019) (“The petition for a writ of certiorari is denied.”).
302 See Johnson, 481 U.S. at 686 (majority opinion) (“Nor has Congress changed [Feres] in the close to 40 years since
it was articulated, even though, as the Court noted in Feres, Congress ‘possesses a ready remedy’ to alter a
misinterpretation of its intent.” (quoting Feres v. United States, 340 U.S. 135, 138 (1950))).
303 Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, Pub. L.
No. 117–168, § 804, 136 Stat. 1759, 1802 (2022).
304 Id. at § 804(b).
305 E.g., id. at §§ 804(c), 804(d), 804(e), 804(g), 804(h), and 804(j)(2).
306 Spletstoser v. Hyten, 44 F.4th 938, 958–59 (9th Cir. 2022).
307 Id. (quoting Lutz v. Secretary of Air Force, 944 F.2d 1477, 1486 (9th Cir. 1991)) (brackets in original).
308 See supra “Exceptions to the FTCA’s Waiver of Sovereign Immunity.”
309 E.g., Malmberg v. United States, 816 F.3d 185, 193 (2d Cir. 2016) (“Damages in FTCA actions are determined by
the law of the state in which the tort occurred.”); Lockhart v. United States, 834 F.3d 952, 955 (8th Cir. 2016) (similar);
Reilly v. United States, 863 F.2d 149, 161 (1st Cir. 1988) (similar). Thus, if the state in which the tort occurred has
enacted statutes that cap the amount of damages a plaintiff may recover in a state law tort case, those statutory caps
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imposes several restrictions on the types and amount of damages that a litigant may recover.310
With few exceptions,311 plaintiffs may not recover punitive damages or prejudgment interest
against the United States.312 The FTCA likewise bars most awards of attorney’s fees against the
government.313
With limited exceptions, an FTCA plaintiff may not recover any damages that exceed the amount
initially requested when the plaintiff submitted the claim to the applicable agency to satisfy the
FTCA’s exhaustion requirement,314 discussed below.315 The underlying purpose of requiring the
plaintiff to specify the maximum amount of damages sought “is to put the government on notice
of its maximum potential exposure to liability”316 and thereby facilitate “intelligent settlement
decisions.”317 However, a plaintiff can potentially recover damages in excess of the amount
initially requested if the plaintiff can demonstrate “intervening facts” or “newly discovered
evidence not reasonably discoverable at the time of presenting the claim to the federal agency”
that warrant a larger award.318
may likewise limit the damages a plaintiff may recover from the United States in an FTCA case. E.g., Clemons v.
United States, No. 4:10-CV-209-CWR-FKB, 2013 WL 3943494, at *2 (S.D. Miss. June 13, 2013) (“[S]tate law
damages caps apply in FTCA cases.”); Bowling v. United States, 740 F. Supp. 2d 1240, 1267 (D. Kan. 2010) (“With
respect to compensatory damages, under the FTCA, damages are determined by the law of the state where the tortious
act was committed, and presumes the application of any relevant damage caps that might be applied in the case of a
private individual under like circumstances.”).
310 See, e.g., 28 U.S.C. § 2674.
311 But see id. (“If, however, if any case wherein death was caused, the law of the place where the act or omission
complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United
States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death
. . . .”).
312 See id. (“The United States . . . shall not be liable for interest prior to judgment or for punitive damages.”); Carlson
v. Green, 446 U.S. 14, 22 (1980) (“Punitive damages in an FTCA suit are statutorily prohibited.”).
313 E.g., Anderson v. United States, 127 F.3d 1190, 1191–92 (9th Cir. 1997) (“Congress has not waived the
government’s sovereign immunity for attorneys’ fees and expenses under the FTCA.”); Bergman v. United States, 844
F.2d 353, 355 (6th Cir. 1988) (“It is clear that the FTCA does not waive the United States’ immunity from attorneys’
fees.”); Joe v. United States, 772 F.2d 1535, 1537 (11th Cir. 1985) (“The FTCA does not contain the express waiver of
sovereign immunity necessary to permit a court to award attorneys’ fees against the United States directly under that
act.”). But see Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 573, 577 (D.C. Cir. 2003) (holding that
plaintiff could potentially recover attorneys’ fees in FTCA action because plaintiff was “not seeking the attorney’s fees
it incurred in bringing its FTCA action,” but was instead seeking “to recover the . . . attorney’s fees it had incurred
defending itself against” an allegedly malicious prosecution).
314 See 28 U.S.C. § 2675(b) (“Action under this section shall not be instituted for any sum in excess of the amount of
the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence
not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of
intervening facts, relating to the amount of the claim.”).
315 See infra “Procedural Requirements.”
316 Zurba v. United States, 318 F.3d 736, 743 (7th Cir. 2003).
317 Allgeier v. United States, 909 F.2d 869, 875 (6th Cir. 1990) (internal citation omitted).
318 28 U.S.C. § 2675(b). See, e.g., Zurba, 318 F.3d at 738–44 (analyzing when an FTCA plaintiff may recover damages
in excess of the amount requested in his initial administrative claim); Lebron v. United States, 279 F.3d 321, 325–31
(5th Cir. 2002) (same); Michels v. United States, 31 F.3d 686, 687–89 (8th Cir. 1994) (same); Allgeier, 909 F.2d at
877–79 (same). See generally Daniel Shane Read, The Courts’ Difficult Balancing Act To Be Fair to Both Plaintiff and
Government Under the FTCA’s Administrative Claims Process, 57 BAYLOR L. REV. 785 (2005) (discussing when
courts have allowed plaintiffs to recover damages that exceed their administrative claims and opining when courts
should allow plaintiffs to do so as a matter of policy).
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Procedural Requirements
In addition to the aforementioned substantive limitations on a plaintiff’s ability to pursue a tort
lawsuit against the United States, Congress has also established an array of procedural
requirements a plaintiff must satisfy in order to validly invoke the FTCA. Most significantly, the
FTCA contains statute-of-limitations and exhaustion provisions that limit when a plaintiff may
permissibly file a tort lawsuit against the United States.319
For one, with certain exceptions,320 a plaintiff may not institute an FTCA action against the
United States unless (1) the plaintiff has first “presented the claim to the appropriate Federal
agency” whose employees are allegedly responsible for the plaintiff’s injury, and (2) that agency
has “finally denied” the plaintiff’s claim.321 These administrative exhaustion requirements afford
federal agencies an opportunity to settle disputes before engaging in formal litigation in the
federal courts.322 “[E]ncouraging settlement of tort claims within administrative agencies” in this
manner arguably “reduce[s] court congestion and avoid[s] unnecessary litigation.”323 Because
litigation can be costly and time-consuming, the settlement of claims within administrative
agencies arguably not only “benefits FTCA claimants by permitting them to forego the expense of
full-blown litigation,” but also “frees up limited [governmental] resources for more pressing
matters.”324
319 E.g., Redlin v. United States, 921 F.3d 1133, 1136 (9th Cir. 2019) (“[28 U.S.C. §] 2401(b) has been interpreted as
including two separate timeliness requirements. A claim is timely only if it has been: (1) submitted to the appropriate
federal agency within two years of accrual and (2) filed in federal court within six months of the agency’s final
denial.”). Federal law rather than state law governs the applicable limitations period. See, e.g., Booth v. United States,
914 F.3d 1199, 1204 n.4 (9th Cir. 2019) (“A court must look to state law for the purpose of defining the actionable
wrong for which the United States shall be liable, but to federal law for the limitations of time within which the action
must be brought.”) (quoting Poindexter v. United States, 647 F.2d 34, 36 (9th Cir. 1981)).
320 See 28 U.S.C. § 2675(a) (“The failure of an agency to make final disposition of a claim within six months after it is
filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim . . . .”); id. (stating
that Section 2675’s exhaustion requirements do “not apply to such claims as may be asserted under the Federal Rules
of Civil Procedure by third party complaint, cross-claim, or counterclaim”).
321 Id. See Read, supra note 318, at 794–95 (outlining the process for filing an administrative claim under the FTCA).
322 Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) (quoting Smoke Shop, LLC v. United States, 761 F.3d
779, 786 (7th Cir. 2014)). See Michels, 31 F.3d at 688 (“In 1966, to encourage more administrative settlements,
Congress amended the FTCA to require administrative claims in all cases.”).
323 Ugo Colella, The Case for Borrowing a Limitations Period for Deemed-Denial Suits Brought Pursuant to the
Federal Tort Claims Act, 35 SAN DIEGO L. REV. 391, 401 (1998). See Read, supra note 318, at 791 (explaining that the
“two goals” of the administrative claim requirement are “to ease court congestion and provide fairness to plaintiffs by
aiding the Government in its attempts to settle meritorious cases”).
324 Colella, supra note 323, at 401–02. See Read, supra note 318, at 792 (“By stating that a goal was to aid the efficient
settlement of meritorious claims, it is clear that Congress intended to help attorneys on both sides resolve disputes by
creating a process at the administrative level that would lead to less work for all involved. Congress related that the
then current situation unnecessarily consumed the time of United States Attorneys and subjected deserving plaintiffs to
needless delays and attorneys’ fees in processing their claims through the federal courts.”); Axelrad, supra note Error!
Bookmark not defined., at 1343 (“Administrative claims allow parties to reach the benefits of settlement without the
expense of filing, much less litigating a suit.”).
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A claimant ordinarily has two years from the date of his injury325 to present a written notification
of his FTCA claim “to the Federal agency whose activities gave rise to the claim.”326 This written
notification must “sufficiently describ[e] the injury to enable the agency to begin its own
investigation.”327 Once the agency receives such notice, it may either settle the claim or deny it.328
With limited exceptions,329 a tort claim against the United States will be time-barred if the
claimant fails to submit an administrative claim within the two-year time limit.330 As a general
rule, a plaintiff must “exhaust his administrative remedies prior to filing suit.” A plaintiff usually
cannot file an FTCA lawsuit and then cure his failure to comply with the exhaustion requirement
by belatedly submitting an administrative claim.331
325 See 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years after such claim accrues.”); Morales-Melecio v. United
States, 890 F.3d 361, 368 (1st Cir. 2018) (“In general, a tort claim under the FTCA accrues when a plaintiff is
injured.”).
326 28 C.F.R. § 14.2. The United States has promulgated a standard form which the claimant may (but need not) use for
this purpose. See id. § 14.2(a) (“[A] claim shall be deemed to have been presented when a Federal agency receives
. . . an executed Standard Form 95 or other written notification of an incident.”). Many courts require the plaintiff to
prove that the agency actually received his claim. See Cooke v. United States, 918 F.3d 77, 81-82 (2d Cir.), cert.
denied, 139 S. Ct. 2748 (2019) (discussing the competing majority and minority positions on this issue). Courts
adopting this interpretation of the FTCA’s claim presentment requirement reason that it is insufficient for the plaintiff
to merely prove that he placed the claim in the mail. See, e.g., id. at 81-82 (“[T]he mere mailing of a notice of claim
does not satisfy the FTCA’s presentment requirement.”).
327 E.g., Lopez, 823 F.3d at 976 (quoting Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th
Cir. 2005)). See 28 C.F.R. § 14.4 (specifying various types of information that a claimant “may be required to submit”);
Chronis v. United States, 932 F.3d 544, 547 (7th Cir. 2019) (explaining that the FTCA’s “presentment requirement has
four elements: (1) notification of the incident; (2) demand for a sum certain; (3) title or capacity of the person signing;
and (4) evidence of the person’s authority to represent the claimant”).
328 Figley, Ethical Intersections, supra note 5, at 359. See Axelrad, supra note Error! Bookmark not defined., at 1336
(“When an agency receives an administrative claim it is empowered to consider whether to grant the claim in full,
resolve the claim by negotiating a compromise settlement, deny the claim, or take no action on the claim.”); 28 U.S.C.
§ 2672 (governing the administrative settlement of FTCA claims).
329 See, e.g., Tunac v. United States, 897 F.3d 1197, 1207 (9th Cir. 2018), cert. denied, 139 S. Ct. 817 (2019)
(explaining that a court may toll the two-year time limit, but only if the plaintiff shows, “among other things, that
‘fraudulent conduct by the defendant result[ed] in concealment of the operative facts’” (alteration in original) (quoting
Fed. Election Comm’n v. Williams, 104 F.3d 237, 240–41 (9th Cir. 1996))). Additionally, sometimes a plaintiff cannot
fairly be expected to file an administrative claim within two years of his injury, especially when “the fact or cause of an
injury is unknown to (and perhaps unknowable by) a plaintiff for some time after the injury occurs.” E.g., Dominguez
v. United States, 799 F.3d 151, 153 (1st Cir. 2015) (quoting Rakes v. United States, 442 F.3d 7, 19 (1st Cir. 2006)). In
such instances, “the statute of limitations clock does not begin to run until the putative plaintiff knows of the factual
basis of both his injury and its cause.” Morales-Melecio, 890 F.3d at 368. See also, e.g., Tunac, 897 F.3d at 1206–07
(applying this rule in the medical malpractice context). This rule “protects plaintiffs who are either experiencing the
latent effects of a previously unknown injury or struggling to uncover the underlying cause of their injuries from having
their claims time-barred before they could reasonably be expected to bring suit.” A.Q.C. ex rel. Castillo v. United
States, 656 F.3d 135, 140 (2d Cir. 2011).
330 Zappone v. United States, 870 F.3d 551, 555 (6th Cir. 2017) (quoting 28 U.S.C. § 2401(b)). See, e.g., Douglas v.
United States, 814 F.3d 1268, 1279 (11th Cir. 2016) (affirming dismissal of FTCA claims that plaintiff had “failed to
fully exhaust”).
331 See McNeil v. United States, 508 U.S. 106, 107–13 (1993) (emphasis added). See also, e.g., Douglas, 814 F.3d at
1279 (affirming dismissal of FTCA claims that plaintiff had “failed to fully exhaust”). But see D.L. ex rel. Junio v.
Vassilev, 858 F.3d 1242, 1246 (9th Cir. 2017) (holding “that the FTCA’s exhaustion requirement does not prevent a
plaintiff from amending a previously filed federal complain
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