Order Code 95-717
Federal Tort Claims Act
Updated December 11, 2007
American Law Division
Vanessa K. Burrows
American Law Division
Federal Tort Claims Act
The Federal Tort Claims Act is the statute by which the United States authorizes
tort suits to be brought against itself. With exceptions, it makes the United States
liable for injuries caused by the negligent or wrongful act or omission of any federal
employee acting within the scope of his employment, in accordance with the law of
the state where the act or omission occurred. Three major exceptions, under which
the United States may not be held liable, even in circumstances where a private
person could be held liable under state law, are the Feres doctrine, which prohibits
suits by military personnel for injuries sustained incident to service; the discretionary
function exception, which immunizes the United States for acts or omissions of its
employees that involve policy decisions; and the intentional tort exception, which
precludes suits against the United States for assault and battery, among some other
intentional torts, unless they are committed by federal law enforcement or
This report discusses, among other things, the application of the Feres doctrine
to suits for injuries caused by medical malpractice in the military, the prohibition of
suits by victims of atomic testing, Supreme Court cases interpreting the discretionary
function exception, the extent to which federal employees may be held liable for torts
they commit in the scope of their employment, and the government contractor
defense to products liability design defect suits.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Feres Doctrine and Medical Malpractice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Discretionary Function Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Suits by Victims of Atomic Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Warner Amendment and the Radiation Exposure
Compensation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Intentional Tort Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Suits Against Federal Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Constitutional Torts: Federal Employees’ Liability
and Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
The Practical Side of Bivens Actions . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Qualified Immunity to Bivens Actions . . . . . . . . . . . . . . . . . . . . . . . . . 25
The Government Contractor Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Federal Tort Claims Act
The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, is the
statute by which the United States authorizes tort suits to be brought against itself.
As a result of the common law doctrine of sovereign immunity, “the United States
cannot be sued without its consent.”1 “Congress alone has the power to waive or
qualify that immunity.”2 In 1946, by enacting the FTCA, Congress waived sovereign
immunity for some tort suits. With exceptions, it made the United States liable:
for injury or loss of property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the government while acting
within the scope of his office or employment, under circumstances where the
United States, if a private person would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b).
Thus, the FTCA makes the United States liable for the torts of its employees3
to the extent that private employers are liable under state law for the torts of their
employees.4 The fact that state law would make a state or municipal entity — as
opposed to a private person — liable under like circumstances is not sufficient to
make the United States liable under the FTCA.5
The FTCA, however, contains exceptions under which the United States may
not be held liable even though a private employer could be held liable under state
law. Three of these exceptions are examined in separate sections of this report: the
Feres doctrine, which prohibits suits by military personnel for injuries sustained
1 Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940).
2 United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 (1926).
3 The United States may be held liable under the FTCA for torts of employees of the
executive, legislative, and judicial branches, but not for torts of government contractors. 28
U.S.C. § 2671.
4 Another section of the FTCA provides that the United States shall be liable “in the same
manner and to the same extent as a private individual under like circumstances” (28 U.S.C.
§ 2674(a)), and the Supreme Court has noted that “like circumstances” are not limited to
“the same circumstances,” but include “analogous” circumstances. United States v. Olson,
546 U.S. 43, 47 (2005).
5 United States v. Olson, supra, note 4.
incident to service;6 the discretionary function exception; and the intentional tort
exception. Among the other exceptions, the United States may not be held liable in
accordance with state law imposing strict liability;7 it may not be held liable for
interest prior to judgment or for punitive damages (28 U.S.C. § 2674);8 for the act or
omission of an employee exercising due care in the execution of an invalid statute or
regulation (28 U.S.C. § 2680);9 for claims “arising out of the loss, miscarriage, or
negligent transmission of letters or postal matter”;10 for claims arising in respect of
the assessment or collection of any tax11 or customs duty; for claims caused by the
fiscal operations of the Treasury or by the regulation of the monetary system; for
claims arising out of combatant activities; or for claims arising in a foreign country.12
6 Federal civilian employees covered by the Federal Employees’ Compensation Act, 5
U.S.C. §§ 8101 et seq., are also prohibited from suing under the FTCA for work-related
injuries. 5 U.S.C. § 8116(c).
7 The requirement in 28 U.S.C. § 1346(b) that liability be based on a “negligent or wrongful
act or omission” has been construed to preclude strict liability. See, Dalehite v. United
States, 346 U.S. 15, 44-45 (1953). However, the National Swine Flu Immunization Program
of 1976, P.L. 94-380, made the United States liable for injuries arising out of the
administration of the swine flu vaccine to the extent that manufacturers would be liable
under state law “including negligence, strict liability in tort, and breach of warranty.”
8 In Molzof v. United States, 502 U.S. 301 (1992), the Supreme Court held that damages for
future medical expenses and loss of enjoyment of life for a veteran in a permanent
vegetative state as a result of government hospital employees’ negligence were not
“punitive” and therefore could be awarded. The government had argued that these damages
were punitive rather than compensatory in nature because the award for future medical
expenses duplicated free medical services already being provided by the veterans’ hospital,
and the award for loss of enjoyment of life cannot redress a comatose patient’s uncognizable
loss. The Court held, however, “that § 2674 bars the recovery only of what are legally
considered ‘punitive damages’ under traditional common-law principles.” Id. at 312
(emphasis in original).
9 Subsequent exceptions cited in the sentence also appear in 28 U.S.C. § 2680.
10 In Dolan v. United States Postal Service, 546 U.S. 481 (2006), the Supreme Court held
that the postal exception is inapplicable to a claim that mail left on the plaintiff’s porch
caused her to trip and fall, just as it is inapplicable to the negligent operation of postal motor
vehicles. “Congress intended to retain immunity,” the Court wrote, “only for injuries
arising, directly or consequentially, because mail either fails to arrive at all or arrives late,
in damaged condition, or at the wrong address.” Id. at 489. Losses of this type, the Court
added, “are at least to some degree avoidable or compensable through postal registration and
insurance.” Id. at 490.
11 Section 6241 of the Technical and Miscellaneous Revenue Act of 1988, P.L. 100-647,
authorizes taxpayers to sue the United States if “any officer or employee of the Internal
Revenue Service recklessly or intentionally disregards” any provision of the Internal
Revenue Code, and to recover up to $100,000 in “actual, direct economic damages”
sustained as a result of such action. 26 U.S.C. § 7433.
12 In Smith v. United States, 507 U.S. 197, 198 (1993), the Supreme Court held that
Antarctica is a foreign country for this purpose even though it is “a sovereignless region
without civil tort law of its own.” In Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004),
the Supreme Court held “that the FTCA’s foreign country exception bars all claims based
on any injury suffered in a foreign country, regardless of where the tortious act or omission
Prior to filing suit under the FTCA, a claimant must present his claim to the
federal agency out of whose activities the claim arises. 28 U.S.C. § 2675.13 This
must be done within two years after the claim accrues. 28 U.S.C. § 2401.14 If, within
six months after receiving a claim, the agency mails a denial of the claim to the
claimant, then the claimant has six months to file suit in federal district court. 28
U.S.C. §§ 2401, 2675. No period of limitations applies to a plaintiff if the agency
fails to act within six months after receiving his claim.15 Suits under the FTCA are
tried without a jury. 28 U.S.C. § 2402.16
An agency may not settle a claim for more than $25,000 without the prior
written approval of the Attorney General or his designee, unless the Attorney General
delegates to the head of the agency the authority to do so.17 “Such delegations may
not exceed the authority delegated by the Attorney General to United States attorneys
to settle claims for money damages against the United States.”18 United States
attorneys are authorized to settle claims in amounts up to $1 million.19 Settlements
occurred.” The plaintiff’s suit therefore was dismissed even though his “abduction in
Mexico was the direct result of wrongful acts of planning and direction by DEA agents
located in California.” Id. at 702. The Court was unwilling to adopt the “headquarters
doctrine” because “it will virtually always be possible to assert that the negligent activity
that injured the plaintiff [abroad] was the consequence of faulty training, selection or
supervision — or even less than that, lack of careful training, selection or supervision — in
the United States.” Id.
13 In McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court disallowed a suit
because the claimant had not first filed an administrative claim, even though the claimant
was a prisoner without legal counsel and had filed an administrative claim (later denied)
only four months after filing suit, before any substantial progress in the litigation had
14 A claim accrues under the FTCA when “the plaintiff has discovered both his injury and
its cause.” United States v. Kubrick, 444 U.S. 111, 120 (1979). This rule benefits, among
others, plaintiffs with latent diseases that are not discovered until years after exposure to a
hazardous substance. See also, Sinclair and Szypszak, Limitations of Action Under the
FTCA: A Synthesis and Proposal, 28 Harvard Journal on Legislation 1 (1991); Annotation,
Statute of Limitations Under Federal Tort Claims Act (28 USCS § 2401(b)), 29 ALR Fed
15 Pascale v. United States, 998 F.2d 186 (3d Cir. 1993).
16 See, Kirst, Jury Trial and the Federal Tort Claims Act: Time to Recognize the Seventh
Amendment Right, 58 Texas Law Review 549 (1980).
17 28 U.S.C. § 2672, as amended by P.L. 101-552, § 8; 38 U.S.C. § 515. There appears to
be no general limit on settlements effected with the prior written approval of the Attorney
General or his designee. A limit applicable to the Department of Justice in non-FTCA
situations is noted in footnote 44 of this report.
18 28 U.S.C. § 2672, as amended by P.L. 101-552, § 8; see also, 38 U.S.C. § 515.
19 28 C.F.R. § 0.168(d)(2); see, Lester Jayson and Robert Longstreth, HANDLING FEDERAL
TORT CLAIMS: ADMINISTRATIVE AND JUDICIAL REMEDIES, § 15.05. The Attorney
General has delegated the authority to settle tort claims of up to $200,000 to the Secretary
of $2,500 or less shall be paid by the agency out of appropriations available to the
agency; settlements of more than $2,500 shall be paid from general revenues. 28
U.S.C. § 2672.
Attorneys who represent claimants under the FTCA may not charge claimants
more than 25 percent of a court award or a settlement made by the Attorney General
or his designee after suit is filed, or more than 20 percent of a settlement made by the
agency with whom a claim is filed. 28 U.S.C. § 2678.20 A court may not order the
United States to pay a claimant’s attorneys’ fees unless the court finds the United
States to have acted in bad faith. 28 U.S.C. § 2412(b).21
The Feres Doctrine and Medical Malpractice
In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court unanimously
held that, although the FTCA contains no explicit exclusion for injuries sustained by
military personnel incident to service, such an exclusion results from construing the
act “to fit, so far as will comport with its words, into the entire statutory scheme of
remedies against the Government to make a workable, consistent and equitable
whole.” 340 U.S. at 139. One reason the Court found that to prohibit recovery for
injuries sustained incident to service would fit the entire statutory scheme was that
the act, at 28 U.S.C. § 2674, makes the United States liable only “to the same extent
as a private individual under like circumstances.” This limitation could be construed
to exclude service-connected injuries because, the Court found,
of Veterans Affairs, the Postmaster General, and the Secretary of Defense, and of up to
$100,000 to the Secretary of Transportation. 28 C.F.R. Part 14, App.
20 See, Annotation, Calculations of Attorneys’ Fees Under Federal Tort Claims Act — 28
USCS § 2678, 86 ALR Fed 866. A California statute that limited the amount of attorneys’
fees that may be charged a client in a medical malpractice action was held to be preempted
to the extent that it would apply in an action brought under the FTCA. Jackson v. United
States, 881 F.2d 707 (9th Cir. 1989).
21 The pertinent part of this provision, which is part of the Equal Access to Justice Act,
states: “The United States shall be liable for such fees [i.e., reasonable attorneys’ fees] and
expenses to the same extent that any other party would be liable under the common law or
under the terms of any statute which specifically provides for such an award.” No statute
provides for fee awards under FTCA, and another part of the Equal Access to Justice Act,
which authorizes fee awards against the United States in some instances where other parties
would not be liable for fee awards, does not apply to “cases sounding in tort.” 28 U.S.C.
§ 2412(d)(1)(A). However, under the common law, parties other than the United States may
be held liable for attorneys’ fees when they act in bad faith. Alyeska Pipeline Service Co.
v. Wilderness Society, 421 U.S. 240, 258-259 (1975).
In Sanchez v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989), the court found a lack of the
requisite bad faith and therefore did “not reach the issue whether an award of attorneys fees
would . . . be barred by the FTCA prohibition against punitive damages [28 U.S.C. § 2674].”
Subsequently, however, in Molzof v. United States, supra, note 8, the Supreme Court, in a
different context, held “that § 2674 bars the recovery only of what are legally considered
‘punitive damages’ under traditional common-law principles.”
that plaintiffs can point to no liability of a “private individual” even remotely
analogous to that which they are asserting against the United States. We know
of no American law which ever has permitted a soldier to recover for negligence,
against either his superior officers or the Government he is serving. Nor is there
any liability “under like circumstances,” for no private individual has power to
conscript or mobilize a private army with such authorities over persons as the
Government vests in echelons of command.
340 U.S. at 141-142.
Another basis for the Court’s decision in Feres was that the act makes “the law
of the place where the act or omission occurred” (28 U.S.C. § 1346(b)) govern
liability, yet, in the case of a soldier, who is not free to choose his habitat, “[t]hat the
geography of an injury should select the law to be applied to his tort claims makes
no sense.” Id. at 143. The Court also was influenced by the fact that Congress has
enacted laws that “provide systems of simple, certain, and uniform compensation for
injuries or death of those in armed services,” yet Congress made no provision as to
how recovery under the FTCA would affect entitlement to such compensation. “The
absence of any such adjustment is persuasive that there was no awareness that the act
might be interpreted to permit recovery for injuries incident to military service.” Id.
at 144. The Court concluded:
that the Government is not liable under the Federal Tort Claims Act for injuries
to servicemen where the injuries arise out of or are in the course of activity
incident to service. Without exception, the relationship of military personnel to
the Government has been governed exclusively by federal law. We do not think
that Congress, in drafting the Act, created a new cause of action dependent on
local law for service-connected injuries or death due to negligence. We cannot
impute to Congress such a radical departure from established law in the absence
of express congressional command.
340 U.S. at 146.
In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-672
(1977), the Supreme Court identified three rationales as the foundation for the Feres
First, the relationship between the Government and members of its Armed Forces
is “‘distinctively federal in character,’”. . . ; it would make little sense to have the
Government’s liability to members of the Armed Services depend on the fortuity
of where the soldier happened to be stationed at the time of the injury.
Second, the Veterans’ Benefits Act establishes as a substitute for tort liability,
a statutory “no fault” compensation scheme which provides generous pensions
to injured servicemen, without regard to any negligence attributable to the
A third factor was explicated in United States v. Brown, 348 U.S. 110, 112
(1954), namely, “[t]he peculiar and special relationship of the soldier to his
superiors, the effects of the maintenance of such suits on discipline, and the
extreme results that might obtain if suits under the Tort Claims Act were allowed
for negligent orders given or negligent acts committed in the course of military
duty. . . .”
The Supreme Court reaffirmed the Feres doctrine in United States v. Shearer,
473 U.S. 52 (1985), and again addressed the reasons for its adoption. “Feres seems
best explained,” the Court wrote:
“by the ‘peculiar and special relationship of the soldier to his superiors, the
effects of the maintenance of such suits on discipline, and the extreme results
that might obtain if suits under the Tort Claims Act were allowed for negligent
orders given or negligent acts committed in the course of military duty.’” The
Feres doctrine cannot be reduced to a few bright-line rules; each case must be
examined in light of the statute as it has been construed in Feres and subsequent
473 U.S. at 57 (citations omitted).
The Court emphasized that significant factors in determining whether the Feres
doctrine bars a suit are “whether the suit requires the civilian court to second-guess
military decisions . . . and whether the suit might impair military discipline.” Id. at
57. It noted that “other factors mentioned in Feres” are “no longer controlling.” Id.
at 58 n.4. These other factors apparently were the distinctively federal nature of the
relationship between the government and military personnel, and the alternative
compensation system available to military personnel. Subsequently, however, in
United States v. Johnson, 481 U.S. 681 (1987), discussed below, the Court
reaffirmed these factors.
In Atkinson v. United States,22 a panel of the United States Court of Appeals for
the Ninth Circuit, relying primarily on Shearer, allowed a medical malpractice suit
to be brought under the FTCA by a servicewoman who suffered injuries “incident to
service” in an Army hospital. The government sought a rehearing, and, in the
interim, the Supreme Court decided United States v. Johnson, supra, which caused
the Ninth Circuit’s panel to grant the rehearing and issue a new opinion in Atkinson,
reversing itself. The Supreme Court subsequently declined to review the case. These
three decisions — the panel’s first decision in Atkinson, Johnson, and the panel’s
second decision in Atkinson — are now examined in turn.
The plaintiff in Atkinson alleged that negligence on the part of Army hospital
personnel had caused her to deliver a stillborn child and to suffer physical and
emotional injuries. The panel, in its first decision, wrote:
[T]he Feres doctrine bars suit only where a civilian court would be called upon
to second-guess military decisions or where the plaintiff’s admitted activities are
of the sort that would directly implicate the need to safeguard military discipline.
. . . In Shearer, the Supreme Court also confirmed that courts should take a
case-by-case, rather than per se, approach to claims [by the government] of
22 804 F.2d 561 (9th Cir. 1986), modified, 813 F.2d 1006 (9th Cir. 1987), withdrawn, 825 F.2d
202 (9th Cir. 1987), cert. denied, 485 U.S. 987 (1988).
804 F.2d at 563. Taking such an approach, the court wrote:
At the time Atkinson sought treatment, she was “not subject in any real way to the
compulsion of military orders or performing any sort of military mission.” . . . No command
relationship exists between Atkinson and her attending physician. No military
considerations govern the treatment in a non-field hospital of a woman who seeks to have
a healthy baby. No military discipline applies to the care a conscientious physician will
provide in this situation. . . . There is simply no connection between Atkinson’s medical
treatment and the decisional or disciplinary interest protected by the Feres doctrine.
Id. at 564-565.
Note that this decision did not hold that all military malpractice suits are exempt
from the Feres doctrine. In taking a case-by-case approach, the court allowed for the
possibility of a situation in which there is a connection between a serviceman or
servicewoman’s “medical treatment and the decisional or disciplinary interest
protected by the Feres doctrine.”
In 1987, in United States v. Johnson, supra, the Supreme Court, in a 5-to-4
decision, held that the Feres doctrine bars suits on behalf of military personnel
injured incident to service even in cases of torts committed by employees of civilian
agencies. The plaintiff in Johnson was the widow of a serviceman killed incident to
service in a helicopter crash allegedly caused by the negligence of the Federal
Aviation Administration. Reexamining the reasons for the Feres doctrine, the Court
concluded that whether the tortfeasor was a civilian or a military employee was not
significant. The reasons for the Feres doctrine that it reexamined, and reaffirmed,
were the three cited in Stencel, set forth on page 5 of this report. Thus, it removed
any doubts that it had cast in Shearer upon the significance of those factors.
Justice Scalia, joined by three other justices in dissent, noted that the Feres
doctrine is not in the FTCA as enacted by Congress, and found the reasons offered
by the Court for adopting the doctrine to be unsatisfactory:
[N]either the three original Feres reasons nor the post hoc rationalization of
“military discipline” justifies our failure to apply the FTCA as written. Feres
was wrongly decided and heartily deserves the “widespread, almost universal
criticism” it has received.
481 U.S. at 700.23
Citing Johnson, the Ninth Circuit’s panel subsequently reversed itself in
Significant for our purposes [the panel wrote] is the Court’s articulation, with
apparent approval, of all three rationales associated with Feres. . . . Simply put,
Johnson appears to breathe new life into the first two Feres rationales, which
until that time had been largely discredited and abandoned. . . . Although we
23 The three original reasons Justice Scalia referred to were that “the parallel private liability
required by the FTCA was absent” and the first two reasons mentioned in Stencel; the
“military discipline” rationale was the third reason mentioned in Stencel.