The Federal Tort Claims Act (FTCA): A Legal Overview
Released: 2019-05-21T00:00:00

Introduction

A plaintiff injured by a defendant's wrongful conduct may file a tort lawsuit to recover money from that defendant. To name an especially 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." 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."

Employees and officers of the federal government occasionally commit torts just like other members of the general public. 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. 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.

Congress, deeming this state of affairs unacceptable, ultimately enacted the Federal Tort Claims Act (FTCA) in 1946. The FTCA allows plaintiffs to file and prosecute certain types of tort lawsuits against the United States and thereby potentially recover financial compensation from the federal government. 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. Other FTCA cases, however, involve grave allegations of government misfeasance. For example, after naval officers allegedly sexually assaulted several women at the infamous Tailhook Convention in 1991, those women invoked the FTCA in an attempt to hold the United States liable for those officers' attacks. 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. Additionally, the U.S. Court of Appeals for the First Circuit affirmed an award of over $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.

Empowering plaintiffs to sue the United States can ensure that persons injured by federal employees receive compensation and justice. However, 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, and the Department of Justice reports that it handles thousands of tort claims filed against the United States each year. 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."

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. For example, the FTCA categorically bars plaintiffs from pursuing certain types of tort lawsuits against the United States. The FTCA also restricts the types and amount of monetary damages that a plaintiff may recover against the United States. Additionally, the FTCA requires plaintiffs to comply with an array of procedural requirements before filing suit.

This report provides an overview of the FTCA. It first discusses the events and policy concerns that led Congress to enact the FTCA, including the background principle of sovereign immunity. 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. In doing so, the report describes categorical exceptions to the government's waiver of sovereign immunity, statutory limitations on a plaintiff's ability to recover monetary damages under the FTCA, and the procedures that govern tort claims against the United States. The report concludes by discussing various legislative proposals to amend the FTCA.

Background

A person injured by the tortious activity of a federal employee generally has two potential targets that he might name as a defendant in a tort lawsuit: (1) the federal employee who committed the tort and (2) the federal government itself. In many cases, however, suing the employee is not a viable option. 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. Moreover, even if Congress had not decided to insulate federal employees from tort liability, suing an individual is typically an unattractive option for litigants, as individual defendants may lack the financial resources to satisfy an award of monetary damages.

For many litigants, the legal and practical unavailability of tort claims against federal employees makes suing the United States a more attractive option. Whereas a private defendant may lack the financial resources to satisfy a judgment rendered against him, the United States possesses sufficient financial resources to pay virtually any judgment that a court might enter against it.

A plaintiff suing the United States, however, may nonetheless encounter significant obstacles. In accordance with a long-standing legal doctrine known as "sovereign immunity," a private plaintiff ordinarily may not file a lawsuit against a sovereign entity—including the federal government—unless that sovereign consents. 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 initiating or prosecuting a lawsuit against the United States. 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" through "private bills."

Some, however, criticized the public bill system. Not only did private bills impose "a substantial burden on the time and attention of Congress," some members of the public became increasingly concerned "that the private bill system was unjust and wrought with political favoritism." Thus, in 1946, Congress enacted the FTCA, which effectuated "a limited waiver of [the federal government's] sovereign immunity" from certain common law tort claims . With certain exceptions and caveats discussed throughout this report, the FTCA authorizes plaintiffs to bring civil lawsuits

1. against the United States; 2. for money damages; 3. for injury to or loss of property, or personal injury or death; 4. caused by a federal employee's negligent or wrongful act or omission; 5. while acting within the scope of his office or employment; 6. 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.

Thus, not only does the FTCA "free Congress from the burden of passing on petitions for private relief" by "transfer[ring] responsibility for deciding disputed tort claims from Congress to the courts," it also creates a mechanism to compensate victims of governmental wrongdoing. 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.

Significantly, however, the FTCA does not itself create a new federal cause of action against the United States; rather, the FTCA waives the United States's sovereign immunity from certain types of claims that exist under state tort law . 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. In this way, the FTCA largely "renders the Government liable in tort as a private individual would be under like circumstances."

Critically, however, "although the FTCA's waiver of sovereign immunity is significant and extensive, it is not complete." 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" that are explained extensively below. Moreover, to limit the fora 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. Furthermore, because Congress believed "that juries would have difficulty viewing the United States as a defendant without being influenced by the fact that it has a deeper pocket than any other defendant," FTCA cases that proceed to trial are generally "tried by the court without a jury."

The Preclusion of Individual Employee Tort Liability Under the FTCA

Notably, the FTCA only authorizes tort lawsuits against the United States itself; it expressly shields individual federal employees from personal liability for torts that they commit within the scope of their employment. In other words, the FTCA "makes the remedy against the United States under the FTCA 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." Congress 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." Critically, the individual employee generally remains immune from tort liability for torts committed within the scope of his employment even if a provision of the FTCA forecloses the plaintiff from recovering monetary damages from the United States itself.

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, and, if so, (2) whether that individual committed the tort within the scope of his office or employment.

Employees and Independent Contractors

First, the FTCA only waives the United States's sovereign immunity as to torts committed by an " employee of the Government." 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. 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).

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.

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. Thus, with certain caveats discussed below, a plaintiff injured by the tortious action of a nonemployee may potentially be able to sue that nonemployee individually under ordinary principles of state tort law, even though he could not sue the United States under the FTCA.

Notably, the United States commonly hires independent contractors to carry out its governmental objectives. The FTCA, however, explicitly excludes independent contractors from the statutory definition of "employee." As a result, "the government cannot be held liable" under the FTCA "for torts committed by its independent contractors"; the plaintiff must instead attempt to seek compensation from the contractor itself.

Different courts consider different sets of factors when evaluating whether an alleged tortfeasor is an independent contractor as opposed to a government employee. Most courts, however, hold that "the critical factor" when assessing whether a defendant is an employee or 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." "[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." Thus, to illustrate, courts have typically determined that certified registered nurse anesthetists (CRNAs) working for federal hospitals qualify as employees under the FTCA. 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. By contrast, 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."

The Boyle Rule

Because the FTCA's prohibition against suits by individual 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. Nevertheless, a plaintiff asserting a tort claim directly against a federal contractor may still encounter other obstacles to recovery. As the Supreme Court ruled in its 1988 decision in 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." 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. Courts have been less willing to extend Boyle immunity to nonmilitary contractors, however.

Scope of Employment

As noted above, the FTCA applies only to torts that a federal employee commits "while acting within the scope of his office or employment." Thus, "[i]f a government employee acts outside the scope of his employment when engaging in tortious conduct, an action against the United States under the FTCA will not lie." Instead, the plaintiff may potentially "file a state-law tort action against the" employee who committed the tort, as the aforementioned protections from liability apply only when employees are acting within the scope of their employment.

Courts 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 the state in which the tort occurred. Although the legal principles that govern the scope of a tortfeasor's employment vary from state to state, 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.

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. The truck hit a dip in the trail, injuring the passenger. 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."

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. 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. After brandishing a firearm at the motorcyclist, the agent sharply careened his vehicle into the motorcycle, throwing the motorcyclist to the ground and severely injuring him. 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." 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." 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. 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." 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.

Attorney General Certification

Occasionally a plaintiff will file a tort suit against an individual without realizing that he is a federal employee. 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." If the Attorney General files such a certification, then

the lawsuit is "deemed an action against the United States" under the FTCA; the employee is dismissed from the action, and the United States is substituted as defendant in the employee's place; and the case proceeds against the government in federal court.

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." 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." 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."

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 employment when he committed the allegedly tortious act, "the FTCA's requirements, exceptions, and defenses apply to the suit." Depending on the circumstances, those requirements, exceptions, and defenses can "absolutely bar [the] plaintiff's case" against the United States, as explained in greater detail below. Moreover, the individual federal employee remains immune from liability even when the FTCA "precludes recovery against the Government" itself. 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."

"In such cases, to try to preserve their lawsuits" against the federal employee, the plaintiff may attempt to "contest the Attorney General's scope-of-employment certification." That is, the plaintiff may argue that the government employee defendant was not acting within the scope of his employment, such that the suit should therefore proceed against the government official in his personal capacity. If the court agrees that the employee was acting within the scope of employment at the time of the alleged tort, then "the suit becomes an action against the United States that is governed by the FTCA." If, however, the court disagrees with the Attorney General's determination, the suit may proceed against the government employee in his personal capacity.

A plaintiff may, however, 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. Because government employees may be "under-insured or judgment proof," they may lack sufficient assets to "satisfy judgments rendered against them" in tort cases. Thus, oftentimes the plaintiff does not object when the Attorney General certifies that the named defendant was acting within the scope of his employment at the time of the alleged tort.

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. 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 his allegedly tortious action. 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 his employment, that employee may at any time before trial petition a federal district court for certification that he was acting within the scope of his employment for the purposes of the FTCA. If the court agrees that the employee was acting within the scope of his employment, then the case proceeds "against the Government, just as if the Attorney General had filed a certification." If, however, 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 his personal capacity.

Exceptions to the FTCA's Waiver of Sovereign Immunity

As mentioned above, the FTCA imposes significant substantive limitations on the types of tort lawsuits a plaintiff may permissibly pursue against the United States. The Congress that enacted the FTCA, concerned about "unwarranted judicial intrusion[s] into areas of governmental operations and policymaking," opted to explicitly preserve the United States' sovereign immunity from more than a dozen categories of claims. Specifically, Section 2680 of the FTCA establishes the following exceptions preventing private litigants from pursuing the following categories of claims against the United States:

"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"; "Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter"; certain claims arising from the actions of law enforcement officers administering customs and excise laws; certain admiralty claims against the United States for which federal law provides an alternative remedy; 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; "Any claim for damages caused by the imposition or establishment of a quarantine by the United States"; certain claims predicated upon intentional torts committed by federal employees; "Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system" ; "Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war"; "Any claim arising in a foreign country"; "Any claim arising from the activities of the Tennessee Valley Authority"; "Any claim arising from the activities of the Panama Canal Company"; or "Any claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives."

Some of these exceptions are more doctrinally significant than others. The following sections of this report therefore discuss the most frequently litigated exceptions to the United States' waiver of immunity from tort claims.

The Discretionary Function Exception

First, Section 2680(a) —which is "commonly called the discretionary function exception" —"preserves the federal government's immunity . . . when an employee's acts involve the exercise of judgment or choice." Along with being one of the most frequently litigated exceptions to the FTCA's waiver of sovereign immunity, the discretionary function exception is, according to at least one commentator, "the broadest and most consequential." 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).

The discretionary function exception serves at least two purposes. 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." 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." Second, the discretionary function exception is intended to "protect the Government from liability that would seriously handicap efficient government operations." By insulating the government from 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. 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." 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."

As explained in greater detail in the following subsections, 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. "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. 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.

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," a court must assess "whether the conduct at issue involves 'an element of judgment or choice' by the employee." "The conduct of federal employees is generally held to be discretionary unless 'a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.'" If "the employee has no rightful option but to adhere to the directive" established by a federal statute, regulation, or policy, "then there is no discretion in the conduct for the discretionary function exception to protect." 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."

Even where a federal statute, regulation, or policy pertaining to the challenged action exists, however, the action may nonetheless qualify as discretionary if the law in question "predominately uses permissive rather than mandatory language." 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. 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. "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.'"

The Fourth Circuit's decision in Rich v. United States exemplifies how courts evaluate whether a federal employee has engaged in discretionary conduct. The plaintiff in Rich —a federal inmate who was 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. Federal law permitted—but did not affirmatively require—BOP "to separate certain inmates from others based on their past behavior." 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.

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. 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. After the plaintiff allegedly contracted polio from a vaccine produced by that manufacturer, the plaintiff sued the United States under the FTCA. 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.

Courts have disagreed regarding 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 courts have held that "the discretionary-function exception . . . does not shield decisions that exceed constitutional bounds, even if such decisions are imbued with policy considerations." These courts reason that "[t]he government 'has no "discretion" to violate the Federal Constitution; its dictates are absolute and imperative.'" By contrast, a minority of courts have instead concluded that the discretionary function exception shields actions "based upon [the] exercise of discretion" even if they are "constitutionally repugnant." These courts base that conclusion on the fact that the text of 28 U.S.C. § 2680(a) purports to shield discretionary judgments even when a government employee abuses his discretion. Still other courts have declined to take a side on this issue.

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 evaluate "whether the exercise or non-exercise of the granted discretion is actually or potentially influenced by policy considerations" —that is, whether the challenged action "implicate[s] social, economic, [or] policy judgments." As the Supreme Court has recognized, the discretionary function exception "protects . . . only governmental actions and decisions based on considerations of public policy." For instance, if a given decision requires a federal employee to "balance competing interests" —such as weighing the benefits of a particular public safety measure against that measure's financial costs —then that decision is likely susceptible to policy analysis within the meaning of the discretionary function exception.

When applying the second prong of the discretionary function exception, courts employ an objective rather than a subjective standard. Courts therefore "do not examine . . . 'whether policy considerations were actually contemplated in making the decision'" —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." Indeed, the discretionary function exception "applies 'even if the discretion has been exercised erroneously' and is deemed to have frustrated the relevant policy purpose." For that reason, whether the employee committed negligence in exercising his discretion "is irrelevant to the applicability of the discretionary function exception." Nor does it matter whether the allegedly tortious action was undertaken "by low-level government officials [or] by high-level policymakers." 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. 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.

If the first element of the discretionary function exception is satisfied, then courts will generally presume that the second element is satisfied as well. 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." Nevertheless, a plaintiff may 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.

Courts assessing the applicability of the discretionary function exception utilize a "case-by-case approach. " 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." Nevertheless, examples from the case law help illustrate which sorts of governmental actions are susceptible to policy analysis. For instance, in the Rich case discussed above, 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.'" 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.'" 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.

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 second-guessing. 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, as a mere decision to act carelessly or slothfully "involves no element of choice or judgment grounded in policy considerations." 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.

The Intentional Tort Exception

Another important exception to the FTCA's waiver of sovereign immunity is known as the "intentional tort exception." An "intentional tort," as the name suggests, occurs "when the defendant acted with the intent to injure the plaintiff or with substantial certainty that his action would injure the plaintiff." A familiar example of an intentional tort is battery—that is, purposeful harmful or offensive physical contact with another person. Subject to a significant proviso discussed below, the intentional tort exception generally preserves the United States's 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.

As the Supreme Court has observed, however, this list "does not remove from the FTCA's waiver all intentional torts;" moreover, the list includes "certain torts . . . that may arise out of negligent"—and therefore unintentional—"conduct." Thus, while the phrase "intentional tort exception" provides a suitable "shorthand description" of the exception's scope, that moniker is, according to the High Court, "not entirely accurate."

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. However, at least some Members of the Congress that first enacted the FTCA appeared to believe (1) that "it would be 'unjust' to make the government liable" for the intentional torts of its employees; and (2) that "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."

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, 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." 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.

The Exception to the Intentional Tort Exception:235 The Law Enforcement Proviso

Critically, however, the intentional tort exception contains a carve-out known as the "law enforcement proviso" that renders the United States liable for certain intentional tort claims committed by "investigative or law enforcement officers of the United States Government." Congress added this proviso "in 1974 in response to widespread publicity over abuse of powers by federal law enforcement officers." Thus, although "private citizens are barred from bringing suit against federal employees for many intentional torts, they may nonetheless bring suit" against the United States for a subset of these torts "if the alleged act was committed by an 'investigative or law enforcement officer.'" Only the following torts fall within the law enforcement proviso's ambit:

assault; battery; false imprisonment; false arrest; abuse of process; and malicious prosecution.

The list of intentional torts that potentially qualify for the law enforcement proviso therefore contains "only half" of "the torts listed in the intentional tort exception." The proviso thereby only "waives immunity for the types of tort claims typically asserted against criminal law enforcement officers, while preserving immunity for other tort claims that are asserted more broadly against federal employees."

To determine whether the proviso applies in any given case, the court must first assess whether the alleged tortfeasor qualifies as an "investigative or law enforcement officer[]." 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." Some courts have therefore concluded that the law enforcement proviso waives the United States's immunity only against claims for intentional torts committed by "criminal law enforcement officers," as contrasted with "federal employees who conduct only administrative searches" like Transportation Security Administration (TSA) screeners. Thus, as a general matter, the United States remains largely immune to claims arising from intentional torts committed by federal employees who are not criminal law enforcement officers.

It is important to note that the law enforcement proviso waives the United States's immunity only for acts or omissions committed "while the officer is 'acting within the scope of his office or employment.'" The underlying tort need not arise while the officer is executing searches, seizing evidence, or making arrests; so long as the officer is "act[ing] within the scope of his or her employment" at the time the tort arises, "the waiver of sovereign immunity holds." In other words, the waiver of sovereign immunity "effected by the law enforcement proviso extends to acts or omissions of law enforcement officers that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity" at the time they commit the allegedly tortious act. 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." Assuming that the correctional officers qualified as law enforcement officers within the meaning of the FTCA 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.

The Foreign Country Exception

As the name suggests, the "foreign country exception" to the FTCA preserves the United States' sovereign immunity against "any claim arising in a foreign country." 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 ." The exception therefore "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.

The recent case of S.H. ex rel. Holt v. United States illustrates how courts apply the foreign country exception in practice. 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. When the mother ultimately gave birth prematurely in Spain, her daughter was injured during birth. After the family returned to the United States, American doctors diagnosed the daughter with cerebral palsy resulting from her premature birth. The court concluded that, because the daughter's "cerebral palsy resulted from the brain injury she sustained 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. 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."

The Military Exceptions

Finally, two exceptions—one created by Congress, one created by the Supreme Court—preserve the federal government's immunity as to certain torts arising from the United States' military activities.

The Combatant Activities Exception

The first such 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 Guard, during time of war." Although the FTCA's legislative history casts little light on the purpose and intended scope of the combatant activities exception, 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."

The 1996 case of Clark v. United States illustrates how the combatant activities exception operates in practice. 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. 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. 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.

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. That 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. 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." The second plaintiff claimed that an Army surgeon negligently left a 30-by-18-inch towel in his stomach during an abdominal operation. The executor of a third servicemember alleged that army surgeons administered "negligent and unskillful medical treatment" that resulted in the servicemember's death. 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."

The Feres doctrine thus "applies broadly" 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." For instance, courts have frequently barred active duty servicemembers from suing the United States for medical malpractice allegedly committed by military doctors.

Notably, the Feres doctrine is not explicitly codified in the FTCA . 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." 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." 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."

As discussed in greater detail below, the Feres doctrine has been the subject of significant debate. Nonetheless, the Supreme Court has reaffirmed or expanded Feres on several occasions despite opportunities and invitations to overturn or confine its holding. 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. 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.

Other Limitations on Damages Under the FTCA

Apart from the exceptions to the United States' waiver of sovereign immunity discussed above, 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, the FTCA imposes several restrictions on the types and amount of damages that a litigant may recover. With few exceptions, plaintiffs may not recover punitive damages or prejudgment interest against the United States. The FTCA likewise bars most awards of attorney's fees against the government.

Furthermore, with limited exceptions, an FTCA plaintiff may not recover any damages that exceed the amount he initially requested when he submitted his claim to the applicable agency to satisfy the FTCA's exhaustion requirement, which this report discusses below. "[T]he underlying purpose of" requiring the plaintiff to specify the maximum amount of damages he seeks "is to put the government on notice of its maximum potential exposure to liability" and thereby "make intelligent settlement decisions." Critically, however, a plaintiff can potentially recover damages in excess of the amount he 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.

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.

For one, with certain exceptions, 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 responsible for the plaintiff's alleged injury, and (2) that agency has "finally denied" the plaintiff's claim. These administrative exhaustion requirements afford federal agencies an opportunity to settle disputes before engaging in formal litigation in the federal courts. "[E]ncouraging settlement of tort claims within administrative agencies" in this manner arguably "reduce[s] court congestion and avoid[s] unnecessary litigation." 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."

A claimant ordinarily has two years from the date of his injury to present a written notification of his FTCA claim "to the Federal agency whose activities gave rise to the claim." This written notification must "sufficiently describ[e] the injury to enable the agency to begin its own investigation." Once the agency receives such notice, it may either settle the claim or deny it.

With limited exceptions, if the claimant fails to submit an administrative claim within the two-year time limit, then "his 'tort claim against the United States shall be forever barred.'" 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.

If, after the claimant submits his claim to the relevant administrative agency, the claimant and the agency agree on a mutually acceptable settlement, no further litigation occurs. Statistics suggest that "[t]he majority of FTCA . . . claims are resolved on the administrative level and do not go to litigation." If the agency does not agree to settle the claim, however, the agency may deny the claim by "mailing, by certified or registered mail, . . . notice of final denial of the claim" to the claimant. If no administrative settlement occurs, a claimant's right to a judicial determination "is preserved and the claimant may file suit in federal court." The claimant typically has six months from the date the agency mails its denial to initiate an FTCA lawsuit against the United States in federal court if he so chooses. With limited exceptions, if the plaintiff does not file suit before this six-month deadline, his claim against the United States will be "forever barred."

If a federal agency does not promptly decide whether to settle or deny claims that claimants have presented to them, the FTCA establishes a mechanism for constructive exhaustion to prevent claims from being consigned to administrative limbo while the claimant awaits the agency's decision. Pursuant to Section 2675(a) of the FTCA, "[t]he 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 for purposes of" the FTCA's exhaustion requirement. Thus, under these limited circumstances, Section 2675(a) authorizes a plaintiff to file an FTCA suit against the United States even before the agency has formally denied his administrative claim.

Legislative Proposals to Amend the FTCA

Since Congress first enacted the FTCA in 1946, the federal courts have developed a robust body of judicial precedent interpreting the statute. In recent decades, however, the Supreme Court has rejected several invitations by litigants to modify its long-standing doctrines governing the FTCA's application. In doing so, the Court has expressed reluctance to revisit settled FTCA precedents in the absence of congressional action. Thus, if Congress disapproves of some or all of the legal principles that currently govern FTCA cases, legislative action may be necessary to change the governing standards.

Some observers have advocated a variety of modifications to the FTCA. Recent legislative proposals to alter the FTCA have included, among other things,

carving out certain categories of claims, cases, or plaintiffs to which the FTCA does not apply; expanding or narrowing the FTCA's definition of "employee" —which, as discussed above, is presently relatively broad, but does not include independent contractors; and amending 28 U.S.C. § 2680 to create new exceptions to the federal government's waiver of sovereign immunity—or, alternatively, to broaden, narrow, or eliminate existing exceptions.

Proposals to change the FTCA's substantive standards implicate policy questions that Congress may wish to consider. On one hand, broadening the FTCA's waiver of sovereign immunity could enable a larger number of victims of government wrongdoing to obtain recourse through the federal courts, but could concomitantly increase the total amount of money the United States must pay to tort claimants each year and exacerbate "concerns . . . about . . . the impact that extensive litigation might have on the ability of government officials to focus on and perform their other duties." Conversely, narrowing the FTCA's immunity waiver could result in a larger number of private individuals bearing the costs of government employee misfeasance, but could result in a cost savings to the United States and decrease the potential for judicial interference with federal operations.

Proposals to Abrogate or Modify Feres

One particular proposal to amend the FTCA that has captured a relatively substantial amount of congressional attention is abrogating or narrowing the Feres doctrine. As discussed above, the Feres doctrine shields the federal government from liability "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to [military] service." Opponents of Feres argue that the doctrine inappropriately bars servicemembers from obtaining recourse for their injuries. Critics maintain that Feres 's bar on FTCA suits creates especially unjust results with respect to servicemembers who suffer injuries in military hospitals and servicemembers who are victims of sexual abuse, as those types of tortious actions are far removed from the core functions of the military. Some Members of Congress, judges, and legal commentators have therefore advocated eliminating or narrowing the Feres doctrine to allow servicemembers to pursue certain tort claims against the United States under the FTCA.

Supporters of Feres , by contrast, have instead urged Congress to retain the Feres doctrine in its current form. These commentators contend "that the abolition of the Feres doctrine would lead to intra-military lawsuits that would have a very adverse effect on military order, discipline and effectiveness." Supporters further maintain that entertaining tort suits by servicemembers against the United States would increase the government's exposure to monetary liability. Some who support the Feres doctrine argue that even though Feres bars servicemembers from suing the United States under the FTCA for injuries they sustain incident to military service, Feres does not necessarily leave servicemembers without any remedy whatsoever; depending on the circumstances, injured servicemembers may be entitled to certain benefits under other federal statutes.

Congress has periodically held hearings to assess whether to retain, abrogate, or modify the Feres doctrine. The House Armed Services Committee's Subcommittee on Military Personnel conducted the most recent of those hearings on April 30, 2019.

If Congress desires to authorize servicemembers to prosecute tort lawsuits against the United States, it has several options. For example, Congress could abolish Feres in its entirety and allow servicemembers to file tort suits against the United States subject to the same exceptions and prerequisites that govern FTCA lawsuits initiated by nonservicemembers. Alternatively, instead of abrogating Feres entirely, Congress could allow servicemembers to sue the United States for only certain injuries arising from military service, such as injuries resulting from medical malpractice. As an alternative to authorizing full-fledged litigation against the United States in federal court, Congress could also create alternative compensation mechanisms intended to provide relief to injured servicemembers whose claims would otherwise be barred by Feres . Such alternative compensation procedures could, for example, resemble the alternative compensation scheme Congress established for persons injured by vaccines.

To that end, Congress has periodically introduced bills proposing to modify the Feres doctrine. Most recently, several Members of the 116th Congress cosponsored the Sfc. Richard Stayskal Military Medical Accountability Act of 2019 ( H.R. 2422 ), which would authorize "member[s] of the Armed Forces of the United States" to bring claims "against the United States under [the FTCA] for damages . . . arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions" rendered at certain military medical treatment facilities under specified conditions.

Private Bills

In addition to proposals to modify the FTCA itself, Congress retains the authority to enact private legislation to compensate individual tort victims who would otherwise be barred from obtaining recourse from the United States under the FTCA in its current form. Although, as explained above, Congress enacted the FTCA in part to eliminate the need to pass private bills in order to compensate persons injured by the federal government, Congress still retains some authority to pass private bills if it so desires. Thus, rather than amend the FTCA to expand the universe of circumstances in which the United States will be liable to tort claimants, some have suggested that Congress should pass individual private bills to compensate particular injured persons or groups of persons who might otherwise lack recourse under the FTCA. To that end, Congress has occasionally "provided compensation [to plaintiffs] in situations where the courts have found that the FTCA waiver of immunity provides no relief."