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The Federal Tort Claims Act (FTCA):

A Legal Overview

Updated November 20, 2019

Congressional Research Service

https://crsreports.congress.gov

R45732

Congressional Research Service

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, a person who negligently causes a

vehicular collision may be 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) deterring people from injuring others and (2) compensating those who are injured.

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

For a substantial portion of this nation’s history, however, plaintiffs injured by the tortious acts of a federal officer or

employee were barred from filing lawsuits against the United States by “sovereign immunity”—a legal doctrine that

ordinarily prohibits private citizens from haling a sovereign state into court 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, deeming this state of affairs unacceptable, enacted the Federal Tort Claims Act (FTCA), which authorizes

plaintiffs to obtain compensation from the United States for the torts of its employees. However, subjecting the federal

government to tort liability not only creates a financial cost to the United States, it also creates a risk that government

officials may inappropriately base their decisions not on socially desirable policy objectives, but rather on the desire to

reduce the government’s exposure to monetary damages. 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 categories 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. In recent years, however, the Supreme Court has expressed reluctance to reconsider its long-standing

FTCA precedents, thereby leaving the task of potentially further developing the FTCA to Congress. Some Members of

Congress have accordingly 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.

R45732

November 20, 2019

Kevin M. Lewis Legislative Attorney

The Federal Tort Claims Act (FTCA): A Legal Overview

Congressional Research Service

Contents

Introduction ..................................................................................................................................... 1

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 ................................................................................................ 13

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................................................................................................ 24

The Exception to the Intentional Tort Exception: The Law Enforcement Proviso ........... 26 The Foreign Country Exception .............................................................................................. 27 The Military Exceptions .......................................................................................................... 28

The Combatant Activities Exception ................................................................................ 28 The Feres Doctrine ........................................................................................................... 29

Other Limitations on Damages Under the FTCA .......................................................................... 31

Procedural Requirements............................................................................................................... 33

Legislative Proposals to Amend the FTCA ................................................................................... 36

Proposals to Abrogate or Modify Feres .................................................................................. 38 Private Bills ............................................................................................................................. 40

Contacts

Author Information ........................................................................................................................ 41

The Federal Tort Claims Act (FTCA): A Legal Overview

Congressional Research Service 1

Introduction A plaintiff injured by a defendant’s wrongful conduct may file a tort lawsuit to recover money

from that defendant. 1 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.” 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

Employees and officers of the federal government occasionally commit torts just like other

members of the general public. 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, deeming this state of affairs unacceptable, ultimately 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 and thereby potentially recover 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 assaulted several

1 See, e.g., Tort, BLACK’S LAW DICTIONARY (10th ed. 2014) (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).

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 John C.

P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513, 514–83 (2003) (discussing various scholarly accounts

of the purposes of tort law).

4 See, e.g., Limone v. United States, 579 F.3d 79, 83 (1st Cir. 2009) (affirming district court’s determination that

several Federal Bureau of Investigation (FBI) agents committed various torts).

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 2, 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 also, 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).

The Federal Tort Claims Act (FTCA): A Legal Overview

Congressional Research Service 2

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. 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

Circuit 12

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. 13

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, 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 2018, https://fiscal.treasury.gov/judgment-fund/annual-

report-congress.html, lists all payments that the United States made to individual claimants under the FTCA and other

compensatory statutes between October 1, 2017, and September 30, 2018. The sum of the “Confirmed Payment

Amounts” for all reported “Litigative Payments” and “Administrative Payments” pursuant to the FTCA equaled a total

of $318,912,807.83. 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/usao/page/file/1199336/download, reports that plaintiffs filed 3,009 tort cases against the

United States during FY2018, and that an additional 4,211 tort cases against the federal government remained pending

from the previous year. In addition, the report states that the Department of Justice received 3,051 new tort-related civil

matters during FY2018.

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.

The Federal Tort Claims Act (FTCA): A Legal Overview

Congressional Research Service 3

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 he might name 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 typically an unattractive option for litigants, as individual defendants may

lack the financial resources to satisfy an award of monetary damages. 31

THOMAS L.J. 375, 377 (2011) (“While a concern for fairness and equity in favor of aggrieved plaintiffs certainly

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., 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 substantial part).”); Harbury, 522 F.3d at 417 (describing

“federal employee[s]” as “potentially judgment-proof”).

The Federal Tort Claims Act (FTCA): A Legal Overview

Congressional Research Service 4

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 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. 33

A plaintiff suing the United States, however, may nonetheless encounter significant obstacles. 34

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. 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

initiating or prosecuting 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 public bill system. 39

Not only did private bills impose “a substantial

burden on the time and attention of Congress,” 40

some members of the public became

increasingly concerned “that the private bill system was unjust and wrought with political

favoritism.” 41

Thus, in 1946, Congress enacted the FTCA, 42

which effectuated “a limited waiver

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 2, 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.”).

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” against “citizens injured by the torts of federal employees”).

37 Id. at 348. See also Axelrad, supra note 2, at 1332 (“Until the [FTCA] was enacted in 1946, no general remedy

existed for torts committed by federal agency employees.”).

38 See, e.g., Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983).

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”).

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 2, 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).

The Federal Tort Claims Act (FTCA): A Legal Overview

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of [the federal government’s] sovereign immunity” 43

from certain common law 44

tort claims. 45

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’s46 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. 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

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

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 193–198 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’s 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 also, 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”).

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 also, 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))).

The Federal Tort Claims Act (FTCA): A Legal Overview

Congressional Research Service 6

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’s 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, “although the FTCA’s waiver of sovereign immunity is significant and

extensive, it 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

extensively below. 57

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. 58

Furthermore, because

Congress believed “that juries would have difficulty viewing the United States as a defendant

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

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.”).

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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 62

that they commit within the scope

of their employment. 63

In other words, the FTCA “makes the remedy against the United States

under the FTCA exclusive” 64

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.” 65

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.” 66

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. 67

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

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 also 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”). 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 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 Levin v. United States, 568 U.S. 503, 509 (2013). See also 28 U.S.C. § 2679(b)(1) (“The remedy against the United

States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death

arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting

within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by

reason of the same subject matter against the employee whose act or omission gave rise to the claim . . . .”).

64 Levin, 568 U.S. at 509.

65 28 U.S.C. § 2679(b)(1). This provision of the FTCA is “often called the Westfall Act.” Levin, 568 U.S. at 509.

66 Adams v. United States, 420 F.3d 1049, 1054 (9th Cir. 2005).

67 See, e.g., United States v. Smith, 499 U.S. 160, 165 (1991) (concluding that federal law “immunizes Government

employees from suit even when an FTCA exception precludes recovery against the Government”).

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the individual who committed the tort was in fact a federal employee, 68

and, if so, (2) whether

that individual committed the tort within the scope of his office or employment. 69

Employees and Independent Contractors

The FTCA only waives the United States’s sovereign immunity as to torts committed by an

“employee of the Government.” 70

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. 71

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). 72

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. 73

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. 74

Thus,

with certain caveats discussed below, 75

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. 76

68 See infra “Employees and Independent Contractors.”

69 See infra “Scope of Employment.”

70 28 U.S.C. § 1346(b)(1) (emphasis added).

71 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 it sovereign immunity under the FTCA for claims based on the alleged negligence of non-

employees . . . .”); 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 . . . .”).

72 28 U.S.C. § 2671.

73 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.”).

74 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’”).

75 See infra “The Boyle Rule.”

76 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

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Notably, the United States commonly hires independent contractors to carry out its governmental

objectives. 77

The FTCA, however, explicitly excludes independent contractors from the statutory

definition of “employee.” 78

As a result, “the government cannot be held liable” under the FTCA

“for torts committed by its independent contractors”; 79

the plaintiff must instead attempt to seek

compensation from the contractor itself. 80

Different courts consider different sets of factors when evaluating whether an alleged tortfeasor is

an independent contractor as opposed to a government employee. 81

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.” 82

“[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

defendant could proceed).

77 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))).

78 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)).

79 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))).

80 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.”

81 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))).

82 U.S. Tobacco, 899 F.3d at 248. See also, e.g., Creel, 598 F.3d at 213 (same); Bryant v. United States, No. CIV 98-

1495 PCT RCB, 2000 WL 33201357, at *5 (D. Ariz. Jan. 11, 2000) (same).

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operations and to control the detailed physical performance of the contractor.” 83

Thus, to

illustrate, courts have typically determined that certified registered nurse anesthetists (CRNAs)

working for federal hospitals qualify as employees under the FTCA. 84

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. 85

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.” 86

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. 87

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

83 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).

84 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”).

85 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.”).

86 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 the purposes of the FTCA. See Glenn v. Performance Anesthesia, P.A., No.

5:09-CV-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) (“[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).

87 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, 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).

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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.” 88

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. 89

Courts have been less willing to extend Boyle immunity to nonmilitary

contractors. 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

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.” 93

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. 94

88 487 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)).

89 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).

90 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”).

91 See supra “Background”; “The Preclusion of Individual Employee Tort Liability Under the FTCA.”

92 28 U.S.C. § 1346(b)(1).

93 Folley v. Henderson, 175 F. Supp. 2d 1007, 1016 (S.D. Ohio 2001) (emphasis added). See also, 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.”).

94 Folley, 175 F. Supp. 2d at 1016. See also, 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”).

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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. 95

Although the legal principles that govern the scope of a tortfeasor’s employment

vary from state to state, 96

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. 97

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. 98

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. 99

The truck hit a dip in the trail, injuring

the passenger. 100

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

95 See, e.g., 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.”).

96 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.”).

97 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 (“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.”);

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))).

98 See, e.g., Doe, 929 F.3d at 166 (“[E]ven intentional torts and illegal conduct may fall within employees’ scope of

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).

99 965 F. Supp. 1220, 1222–23 (E.D. Wis. 1997).

100 Id. at 1223.

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concluded that the driver “was acting within the course of his employment” as a federal officer

“when the injury occurred.” 101

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. 102

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. 103

After

brandishing a firearm at the motorcyclist, 104

the agent sharply careened his vehicle into the

motorcycle, throwing the motorcyclist to the ground and severely injuring him. 105

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.” 106

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.” 107

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. 108

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.” 109

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. 110

Attorney General Certification

Occasionally a plaintiff will file a tort suit against an individual 111

without realizing that he is a

federal employee. 112

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.” 113

If the Attorney General files such a certification, then

101 Id.

102 620 F.3d at 52.

103 Id. at 52.

104 Id.

105 Id. at 53.

106 Id. at 56.

107 Id.

108 Id.

109 Id. at 57.

110 Id. at 58.

111 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).

112 See Hershkoff, supra note 40, at 200 (noting that injured persons will sometimes “file[] a garden-variety personal-

injury suit” against an individual “in state court, not knowing that the tortfeasor is an agent or employee of the United

States”).

113 28 U.S.C. § 2679(d)(1)–(2).

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 the lawsuit is “deemed an action against the United States” under the FTCA;114

 the employee is dismissed from the action, and the United States is substituted as defendant in the employee’s place;

115 and

 the case proceeds against the government in federal court.116

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.” 117

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.” 118

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.” 119

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.” 120

Depending on the circumstances, those

requirements, exceptions, and defenses can “absolutely bar [the] plaintiff’s case” against the

United States, 121

as explained in greater detail below. 122

Moreover, the individual federal

employee remains immune from liability even when the FTCA “precludes recovery against the

Government” itself. 123

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.” 124

“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.” 125

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. 126

If the court agrees that the employee was acting within the scope of

114 Id.

115 Osborn v. Haley, 549 U.S. 225, 230 (2007). See also 28 U.S.C. § 2679(d)(1)–(2).

116 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.”).

117 Id. at 231.

118 Id. at 238.

119 Id. at 252.

120 Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008) (citing 28 U.S.C. § 2679(d)(1)).

121 Id. at 417.

122 See infra “Exceptions to the FTCA’s Waiver of Sovereign Immunity.”

123 United States v. Smith, 499 U.S. 160, 165 (1991). See also 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”).

124 B & A Marine Co. v. Am. Foreign Shipping Co., 23 F.3d 709, 715 (2d Cir. 1994).

125 Harbury, 522 F.3d at 417. Cf. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995) (holding that the

Attorney General’s scope-of-employment certification under the FTCA is subject to judicial review).

126 Harbury, 522 F.3d at 417. See also Doe v. Meron, 929 F.3d 153, 161 (4th Cir. 2019) (“If a plaintiff challenges the

Attorney General’s certification, he must prove that the defendants were not acting within the scope of their

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employment at the time of the alleged tort, then “the suit becomes an action against the United

States that is governed by the FTCA.” 127

If, however, the court disagrees with the Attorney

General’s determination, the suit may proceed against the government employee in his personal

capacity. 128

A plaintiff may 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. 129

Because government

employees may be “under-insured or judgment proof,” they may lack sufficient assets to “satisfy

judgments rendered against them” in tort cases. 130

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. 131

If a plaintiff does not challenge the Attorney

General’s certification, the certification has conclusive effect. 132

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. 133

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. 134

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. 135

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.” 136

If, however, the court instead finds that the government employee was not

employment. If the plaintiff presents persuasive evidence refuting certification, the government must provide evidence

and analysis supporting its conclusion that the conduct at issue was carried out within the scope of employment. If the

plaintiff’s evidence carries the burden of proof, the district court may allow any discovery it deems appropriate.”)

(internal citations omitted).

127 Harbury, 522 F.3d at 417. See also, e.g., Doe, 929 F.3d at 161 (“If the district court determines that the employees

were acting within the scope of their employment, the government is substituted as the defendant for the individual

employees.”).

128 Harbury, 522 F.3d at 417.

129 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.”).

130 Pfander & Aggarwal, supra note 33, at 443 n.133.

131 Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 422 (1995) (“Ordinarily, scope-of-employment certifications

occasion no contest.”).

132 E.g., Doe, 929 F.3d at 160.

133 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.”).

134 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”).

135 Fountain v. Karim, 838 F.3d 129, 133 n.3 (2d Cir. 2016) (citing 28 U.S.C. § 2679(d)(3)).

136 Harbury v. Hayden, 522 F.3d 413, 416 n.1 (D.C. Cir. 2008) (citing 28 U.S.C. § 2679(d)(3)–(4)).

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acting within the scope of employment, then the lawsuit may proceed against the government

employee in his personal capacity. 137

Exceptions to the FTCA’s Waiver of Sovereign

Immunity As mentioned above,

138 the FTCA imposes significant substantive limitations on the types of tort

lawsuits a plaintiff may permissibly pursue against the United States. 139

The Congress that

enacted the FTCA, concerned about “unwarranted judicial intrusion[s] into areas of governmental

operations and policymaking,” 140

opted to explicitly preserve the United States’ sovereign

immunity from more than a dozen categories of claims. 141

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”; 142

 “Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter”;

143

 certain claims arising from the actions of law enforcement officers administering customs and excise laws;

144

137 Id.

138 See supra “Background.”

139 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”).

140 Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983).

141 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 381–32 (“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.”).

142 See 28 U.S.C. § 2680(a). See also infra “The Discretionary Function Exception.”

143 28 U.S.C. § 2680(b). See also, e.g., Dolan v. USPS, 546 U.S. 481, 483–92 (2006) (analyzing the scope of Section

2680(b)).

144 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.

v. United States, 926 F.3d 1117, 1123–26 (9th Cir.), cert. denied, 2019 WL 5301048 (Oct. 21, 2019) (applying Section

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 certain admiralty145 claims against the United States for which federal law provides an alternative remedy;

146

 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;

147

 “Any claim for damages caused by the imposition or establishment of a quarantine by the United States”;

148

 certain claims predicated upon intentional torts committed by federal employees;

149

 “Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system”

150 ;

 “Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war”;

151

 “Any claim arising in a foreign country”;152

 “Any claim arising from the activities of the Tennessee Valley Authority”;153

 “Any claim arising from the activities of the Panama Canal Company”;154 or

 “Any claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives.”

155

If a tort claim against the United States falls within any of these exceptions, the district court

lacks jurisdiction to adjudicate it. 156

Some of the exceptions listed above are more doctrinally significant than others. 157

The following

sections of this report therefore discuss the most frequently litigated exceptions to the United

States’ waiver of immunity from tort claims.

2680(c)’s “detention of goods exception”).

145 “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).

146 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”).

147 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.

148 28 U.S.C. § 2680(f).

149 See id. § 2680(h). See also infra “The Intentional Tort Exception.”

150 28 U.S.C. § 2680(i).

151 Id. § 2680(j). See also infra “The Combatant Activities Exception.”

152 28 U.S.C. § 2680(k). See also infra “The Foreign Country Exception.”

153 28 U.S.C. § 2680(l). See also 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).

154 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).

155 28 U.S.C. § 2680(n).

156 See, e.g., DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1123 (9th Cir.), cert. denied, 2019 WL 5301048

(Oct. 21, 2019).

157 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”

statutory exception to the FTCA); James R. Levine, The Federal Tort Claims Act: A Proposal for Institutional Reform,

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The Discretionary Function Exception

Section 2680(a) 158

—which is “commonly called the discretionary function exception” 159

“preserves the federal government’s immunity . . . when an employee’s acts involve the exercise

of judgment or choice.” 160

Along with being one of the most frequently litigated exceptions to the

FTCA’s waiver of sovereign immunity, 161

the discretionary function exception is, according to at

least one commentator, “the broadest and most consequential.” 162

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). 163

The discretionary function exception serves at least two purposes. 164

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.” 165

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.” 166

Second,

the discretionary function exception is intended to “protect the Government from liability that

would seriously handicap efficient government operations.” 167

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. 168

100 COLUM. L. REV. 1538, 1541 (2000) (similar).

158 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”).

159 E.g., Evans v. United States, 876 F.3d 375, 380 (1st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018).

160 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.

161 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.”).

162 Niles, supra note 16, at 1300. See also 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).

163 Seamon, supra note 33, at 694–95.

164 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.”).

165 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).

166 Niles, supra note 16, at 1308. See also 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”).

167 Varig Airlines, 467 U.S. at 814 (quoting United States v. Muniz, 374 U.S. 150, 163 (1963)).

168 See Niles, supra note 16, at 1309 (noting the possibility “that the threat of liability will induce government officials

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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.” 169

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.” 170

As explained in greater detail in the following subsections, 171

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. 172

“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. 173

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. 174

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,” 175

a court must assess “whether the conduct at

issue involves ‘an element of judgment or choice’ by the employee.” 176

“The conduct of federal

employees is generally held to be discretionary unless ‘a federal 177

statute, regulation, or policy

specifically prescribes a course of action for an employee to follow.’” 178

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.” 179

Put another way, the discretionary function exception does not insulate the United

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”).

169 Id. at 1310.

170 Varig Airlines, 467 U.S. at 808.

171 See infra “Whether the Challenged Conduct Is Discretionary”; “Whether Policy Considerations Influence the

Exercise of the Employee’s Discretion.”

172 E.g., Gordo-Gonzalez v. United States, 873 F.3d 32, 36 (1st Cir. 2017).

173 Id. See also, 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.”).

174 Seamon, supra note 33, at 706–07.

175 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)).

176 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)).

177 “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).

178 Id. (quoting Berkovitz, 486 U.S. at 536). See also, 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))).

179 Berkovitz, 486 U.S. at 536.

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States from liability when its employees “act in violation of a statute or policy that specifically

directs them to act otherwise.” 180

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.” 181

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. 182

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. 183

“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.’” 184

The Fourth Circuit’s decision in Rich v. United States 185

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. 186

Federal

law permitted—but did not affirmatively require—BOP “to separate certain inmates from others

based on their past behavior.” 187

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. 188

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. 189

The plaintiff in

Berkovitz alleged that the federal government issued a license to a vaccine manufacturer “without

180 Tsolmon v. United States, 841 F.3d 378, 384 (5th Cir. 2016). See also, 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.”).

181 Compart’s Boar Store, 829 F.3d at 605 (quoting Herden v. United States, 726 F.3d 1042, 1047 (8th Cir. 2013)).

182 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); Kelly v. United States, 924 F.2d

355, 358, 360–61 (1st Cir. 1991)).

183 Id. at 1030 (quoting Sabow v. United States, 93 F.3d 1445, 1453 (9th Cir. 1996)).

184 Compart’s Boar Store, 829 F.3d at 605 (quoting Hart v. United States, 630 F.3d 1085, 1086 (8th Cir. 2011)).

185 811 F.3d 140 (4th Cir. 2015).

186 See id. at 141–42.

187 See id. at 145 (analyzing 28 C.F.R. § 524.72).

188 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).

189 See 486 U.S. 531, 542–43 (1988).

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first receiving data that the manufacturer must submit showing how the product . . . matched up

against regulatory safety standards,” as required by federal law. 190

After the plaintiff allegedly

contracted polio from a vaccine produced by that manufacturer, the plaintiff sued the United

States under the FTCA. 191

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. 192

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 193

have held that “the discretionary-function exception . . . does

not shield decisions that exceed constitutional bounds, even if such decisions are imbued with

policy considerations.” 194

These courts reason that “[t]he government ‘has no “discretion” to

violate the Federal Constitution; its dictates are absolute and imperative.’” 195

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.” 196

190 Id. at 542.

191 Id. at 533.

192 Id. at 532, 542–43.

193 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).

194 Id. at 944. See also, 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 above-

cited 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).

195 Loumiet, 828 F.3d at 944 (quoting Owen v. City of Indep., Mo., 445 U.S. 622, 649 (1980)). See also, e.g., Medina,

259 F.3d at 225 (“[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))); U.S. Fid. & Guar. Co., 837 F.2d at 120 (“[C]onduct

cannot be discretionary if it violates the Constitution.”).

196 See Kiiskila v. United States, 466 F.2d 626, 627–28 (7th Cir. 1972). See also Linder v. United States, 937 F.3d

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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. 197

Still

other courts have declined to take a side on this issue. 198

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” 199

—that is, whether the challenged action “implicate[s]

social, economic, [or] policy judgments.” 200

As the Supreme Court has recognized, the

discretionary function exception “protects . . . only governmental actions and decisions based on

considerations of public policy.” 201

For instance, if a given decision requires a federal employee

to “balance competing interests” 202

—such as weighing the benefits of a particular public safety

measure against that measure’s financial costs 203

—then that decision is likely susceptible to

policy analysis within the meaning of the discretionary function exception. 204

When applying the second prong of the discretionary function exception, courts employ an

objective rather than a subjective standard. 205

Courts therefore “do not examine . . . ‘whether

policy considerations were actually contemplated in making the decision’” 206

—that is, “[t]he

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.”).

197 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”).

198 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).

199 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)).

200 E.g., Gonzalez v. United States, 814 F.3d 1022, 1033 (9th Cir. 2016).

201 Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 537 (1988).

202 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)).

203 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.”).

204 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).

205 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

weighed social, economic, and political policy considerations before acting.” (quoting Ochran v. United States, 117

F.3d 495, 500 (11th Cir. 1997))).

206 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 policy-

balancing.”) (internal citations and quotation marks omitted); Jude v. Comm’r of Soc. Sec., 908 F.3d 152, 159 (6th Cir.

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decision need not actually be grounded in policy considerations so long as it is, by its nature,

susceptible to a policy analysis.” 207

The discretionary function exception “applies ‘even if the

discretion has been exercised erroneously’ and is deemed to have frustrated the relevant policy

purpose.” 208

Whether the employee committed negligence in exercising his discretion “is

irrelevant to the applicability of the discretionary function exception.” 209

Nor does it matter

whether the allegedly tortious action was undertaken “by low-level government officials [or] by

high-level policymakers.” 210

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. 211

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. 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

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 case law help illustrate which sorts of governmental actions are

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.”).

207 Gonzalez, 814 F.3d at 1028 (quoting GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002)). See

also, 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))).

208 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”).

209 Evans v. United States, 876 F.3d 375, 381 (1st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018). See also, 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).

210 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.”).

211 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984).

212 Evans, 876 F.3d at 380 (quoting United States v. Gaubert, 499 U.S. 315, 334 (1991)).

213 Gaubert, 499 U.S. at 324.

214 Id.

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.

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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 second-

guessing. 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

as a mere decision to act carelessly or slothfully

“involves no element of choice or judgment grounded in policy considerations.” 225

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. 226

The Intentional Tort Exception

Another important exception to the FTCA’s waiver of sovereign immunity is known as the

“intentional tort exception.” 227

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.” 228

A familiar example of an intentional tort is battery—that is,

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 also 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)).

225 Palay v. United States, 349 F.3d 418, 432 (7th Cir. 2003).

226 See Whisnant v. United States, 400 F.3d 1177, 1179, 1183 (9th Cir. 2005).

227 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))).

228 Kenneth J. Vandevelde, A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort, 19

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purposeful harmful or offensive physical contact with another person. 229

Subject to a significant

proviso discussed below, 230

the intentional tort exception generally 231

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.232

The Supreme Court has observed that 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.” 233

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.” 234

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. 235

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; 236

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.” 237

HOFSTRA L. REV. 447, 447 (1990). See also 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”).

229 See, e.g., RESTATEMENT (SECOND) OF TORTS § 13.

230 See infra “The Exception to the Intentional Tort Exception: The Law Enforcement Proviso.”

231 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).

232 28 U.S.C. § 2680(h).

233 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).”).

234 Levin, 568 U.S. at 507 n.1.

235 Fuller, supra note 17, at 383–84.

236 Id. at 384.

237 Id.

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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, 238

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.” 239

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. 240

The Exception to the Intentional Tort Exception:241 The Law Enforcement

Proviso

However, the intentional tort exception contains a carve-out known as the “law enforcement

proviso” 242

that renders the United States liable for certain intentional tort claims committed by

“investigative or law enforcement officers of the United States Government.” 243

Congress added

this proviso “in 1974 in response to widespread publicity over abuse of powers by federal law

enforcement officers.” 244

Only the following torts fall within the law enforcement proviso’s

ambit:

 assault;

 battery;

 false imprisonment;

 false arrest;

 abuse of process; and

 malicious prosecution.245

To determine whether the proviso applies in any given case, the court must assess whether the

alleged tortfeasor qualifies as an “investigative or law enforcement officer[].” 246

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.” 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 (USDT’s) Federal Law Enforcement Training

238 See supra “Introduction.”

239 Hallett v. U.S. Dep’t of Navy, 850 F. Supp. 874, 878 (D. Nev. 1994).

240 Id. at 877–78.

241 See Fuller, supra note 17, at 385.

242 See, e.g., Millbrook v. United States, 569 U.S. 50, 52 (2013) (using the phrase).

243 28 U.S.C. § 2680(h).

244 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).

245 28 U.S.C. § 2680(h).

246 See id.

247 Id.

248 See Campos v. United States, 888 F.3d 724, 737 (5th Cir. 2018), cert. denied, 139 S. Ct. 1317 (2019).

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Center (FLETC) 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’s 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; 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.” 253

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. 254

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.” 255

Assuming that the correctional officers

qualified as law enforcement officers within the meaning of the FTCA 256

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. 257

The Foreign Country Exception

As the name suggests, the “foreign country exception” 258

to the FTCA preserves the United

States’ sovereign immunity against “any claim arising in a foreign country.” 259

The Supreme

249 See Metz v. United States, 788 F.2d 1528, 1532 (11th Cir. 1986) (“Because the FLETC and USDT officials are not

themselves law enforcement officers and because the law enforcement proviso cannot be expanded to apply to

governmental actors who are not law enforcement officers, the provisions of § 2680(h) bar liability for false arrest and

false imprisonment based on the actions of the FLETC and USDT officials.”).

250 See Pellegrino v. U.S. Transp. Sec. Admin., 937 F.3d 164, 167-81 (3d Cir. 2019) (en banc). 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”). See also 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 Millbrook, 569 U.S. at 57.

255 See id. at 51.

256 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.

257 See id. at 51–57.

258 See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004) (using the phrase “foreign country exception”).

259 28 U.S.C. § 2680(k).

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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.” 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 recent 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 “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. 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—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.” 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

260 Sosa, 542 U.S. at 712 (emphasis added).

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)).

269 28 U.S.C. § 2680(j).

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))).

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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 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. 276

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. 277

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.” 278

The second plaintiff claimed that an Army

surgeon negligently left a 30-by-18-inch towel in his stomach during an abdominal operation. 279

The executor of a third servicemember alleged that army surgeons administered “negligent and

unskillful medical treatment” that resulted in the servicemember’s death. 280

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.” 281

271 Saleh, 580 F.3d at 7. See also, 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 See Feres v. United States, 340 U.S. 135, 146 (1950). See also, 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.

277 See Feres, 340 U.S. at 136-37.

278 Id.

279 Id. at 137.

280 Id.

281 Id. at 146.

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The Feres doctrine thus “applies broadly” 282

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.” 283

For instance, courts have

frequently barred active duty servicemembers from suing the United States for medical

malpractice allegedly committed by military doctors. 284

The Feres doctrine is not explicitly codified in the FTCA. 285

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.” 286

According to the Supreme Court, “complex, subtle, and professional decisions as to the

282 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 also, 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.”).

283 Ortiz, 786 F.3d at 821 (quoting Pringle, 208 F.3d at 1223–24). See also, 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”).

284 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 non-

servicemember 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 (and, given her age, could not be) 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 Pre-Birth, 2016 WIS. L. REV. 263, 263 (“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).

285 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, as discussed above, see supra “The Combatant Activities Exception,” the FTCA does contain a provision

preserving the government’s immunity “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 . . . .”).

286 Ortiz, 786 F.3d at 821. See also, 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)).

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composition, training, and . . . control of a military force are essentially professional military

judgments.” 287

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.” 288

As discussed in greater detail below, 289

the Feres doctrine has been the subject of significant

debate. 290

Nonetheless, the Supreme Court has reaffirmed 291

or expanded 292

Feres on several

occasions despite opportunities and invitations to overturn 293

or confine 294

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. 295

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. 296

Other Limitations on Damages Under the FTCA Apart from the exceptions to the United States’ waiver of sovereign immunity discussed above,

297

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, 298

the FTCA

287 United States v. Shearer, 473 U.S. 52, 58 (1985) (alteration in original) (quoting Chappell, 462 U.S. at 302).

288 United States v. Johnson, 481 U.S. 681, 690 (1987) (quoting Shearer, 473 U.S. at 59).

289 See infra “Proposals to Abrogate or Modify Feres.”

290 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].”).

291 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).

292 See Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 673 (1977) (“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.”).

293 See, e.g., Johnson, 481 U.S. at 700 (Scalia, J., dissenting) (opining that “Feres was wrongly decided and heartily

deserves the ‘widespread, almost universal criticism’ it has received” (quoting Agent Orange, 580 F. Supp. at 1246)).

294 See, e.g., id. at 692 (“I can perceive no reason to accept petitioner’s invitation to extend [Feres] as the Court does

today.”); Stencel Aero, 431 U.S. at 674 (Marshall, J., dissenting) (“I do not agree that [Feres’s] extension to cover this

case is justified.”).

295 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.”).

296 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))).

297 See supra “Exceptions to the FTCA’s Waiver of Sovereign Immunity.”

298 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);

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imposes several restrictions on the types and amount of damages that a litigant may recover. 299

With few exceptions, 300

plaintiffs may not recover punitive damages or prejudgment interest

against the United States. 301

The FTCA likewise bars most awards of attorney’s fees against the

government. 302

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, 303

which this report discusses below. 304

“[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” 305

and thereby “make

intelligent settlement decisions.” 306

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. 307

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

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.”).

299 See, e.g., 28 U.S.C. § 2674.

300 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

. . . .”).

301 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.”).

302 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).

303 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.”).

304 See infra “Procedural Requirements.”

305 Zurba v. United States, 318 F.3d 736, 743 (7th Cir. 2003).

306 Allgeier v. United States, 909 F.2d 869, 875 (6th Cir. 1990) (internal citation omitted).

307 28 U.S.C. § 2675(b). See also, e.g., Zurba, 318 F.3d at 738–44 (analyzing when an FTCA plaintiff may recover

damages in excess than 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. 308

For one, with certain exceptions, 309

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. 310

These administrative exhaustion requirements afford

federal agencies an opportunity to settle disputes before engaging in formal litigation in the

federal courts. 311

“[E]ncouraging settlement of tort claims within administrative agencies” in this

manner arguably “reduce[s] court congestion and avoid[s] unnecessary litigation.” 312

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.” 313

308 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)).

309 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”).

310 Id. See also Read, supra note 307, at 794–95 (outlining the process for filing an administrative claim under the

FTCA).

311 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 also Michels, 31 F.3d at 688 (“In 1966, to encourage more administrative settlements,

Congress amended the FTCA to require administrative claims in all cases.”).

312 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 also Read, supra note 307, 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”).

313 Colella, supra note 312, at 401–02. See also Read, supra note 307, 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 2, 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 injury 314

to present a written notification

of his FTCA claim “to the Federal agency whose activities gave rise to the claim.” 315

This written

notification must “sufficiently describ[e] the injury to enable the agency to begin its own

investigation.” 316

Once the agency receives such notice, it may either settle the claim or deny it. 317

With limited exceptions, 318

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.’” 319

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. 320

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. 321

Statistics

314 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.”).

315 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 (but not all) 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.”).

316 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 also 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”).

317 Figley, Ethical Intersections, supra note 5, at 359. See also Axelrad, supra note 2, 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).

318 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).

319 Zappone v. United States, 870 F.3d 551, 555 (6th Cir. 2017) (quoting 28 U.S.C. § 2401(b)). See also, 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”).

320 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 complaint over which there is jurisdiction to add an FTCA claim

once he has exhausted his administrative remedies”) (emphasis in original).

321 See 28 U.S.C. § 2672 (“The acceptance by the claimant of any . . . award, compromise, or settlement shall be final

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suggest that “[t]he majority of FTCA . . . claims are resolved on the administrative level and do

not go to litigation.” 322

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. 323

If no administrative settlement occurs, a claimant’s right to a judicial

determination “is preserved and the claimant may file suit in federal court.” 324

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 325

if he so chooses. 326

With limited exceptions, 327

if the

plaintiff does not file suit before this six-month deadline, his claim against the United States will

be “forever barred.” 328

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. 329

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. 330

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. 331

and conclusive on the claimant, and shall constitute a complete release of any claim against the United States

. . . . [A]ny such award, compromise, settlement, or determination shall be final and conclusive on all officers of the

Government.”).

322 Figley, Ethical Intersections, supra note 5, at 359. Cf. Axelrad, supra note 2, at 1334 (“[D]uring fiscal year 1998,

the Postal Service reported that it received approximately 15,000 tort claims and paid approximately 11,000 of those

claims through the administrative process.”).

323 28 U.S.C. § 2401(b).

324 Axelrad, supra note 2, at 1344.

325 See 28 U.S.C. § 1346(b)(1) (providing that specified federal district courts “shall have exclusive jurisdiction” over

FTCA cases).

326 Id. § 2401(b) (“A tort claim against the United States shall be forever barred . . . unless action is begun within six

months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to

which it was presented.”). See also, e.g., Raplee v. United States, 842 F.3d 328, 333 (4th Cir. 2016) (“[28 U.S.C.]

§ 2401(b) requires a plaintiff to bring a federal civil action within six months after a federal agency mails its notice of

final denial of his claim.”). But see 28 C.F.R. § 14.9(b) (providing that, under certain conditions, a claimant may seek

reconsideration of the agency’s final denial, which tolls the six-month statute of limitations).

327 See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015) (holding that the FTCA’s statutes of limitation

may be extended under certain conditions); Ortiz-Rivera v. United States, 891 F.3d 20, 25 (1st Cir. 2018) (“The

FTCA’s time bar may be . . . tolled when a party has pursued its rights diligently but some extraordinary circumstance

prevents it from meeting a deadline.”) (internal citation, quotation marks, and brackets omitted). See also 28 U.S.C.

§ 2679(d)(5) (providing that “[w]henever an action or proceeding in which the United States is substituted as the party

defendant . . . is dismissed for failure first to present a claim” to the appropriate federal agency, “such a claim shall be

deemed to be timely presented” if (1) “the claim would have been timely had it been filed on the date the underlying

civil action was commenced;” and (2) “the claim is presented to the appropriate Federal agency within 60 days after

dismissal of the civil action”).

328 28 U.S.C. § 2401(b). See also, e.g., Sconiers v. United States, 896 F.3d 595, 596 (3d Cir. 2018) (affirming dismissal

of FTCA case where plaintiff “failed to” file suit “within six months of [the] agency’s written denial”).

329 See 28 U.S.C. § 2675(a). See also Colella, supra note 312, at 395 (“[A]n estimated one-third of administrative

claims are deemed denied by the filing of a lawsuit.”); Axelrad, supra note 2, at 1336 (“When an agency receives an

administrative claim it is empowered to . . . take no action on the claim.”).

330 28 U.S.C. § 2675(a).

331 See generally Colella, supra note 312, at 406–56 (discussing the FTCA’s deemed denial provision and its effects on

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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. 332

In recent decades, however, the Supreme Court

has rejected several invitations by litigants to modify its long-standing doctrines governing the

FTCA’s application. 333

In doing so, the Court has expressed reluctance to revisit settled FTCA

precedents in the absence of congressional action. 334

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. 335

Some observers have advocated a variety of modifications to the FTCA. 336

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;

337

the FTCA’s statutes of limitation).

332 See, e.g., United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015); United States v. Gaubert, 499 U.S. 315,

324 (1991); Feres v. United States, 340 U.S. 135, 146 (1950).

333 See Petition for Writ of Certiorari at i, Evans v. United States, No. 17-1516 (U.S. May 4, 2018) (asking the Court,

among other things, to “modif[y]” its “prior precedent applying the discretionary-function exception to the [FTCA] to

government employees acting on the operational level”); Order Denying Writ of Certiorari, Evans, No. 17-1516 (Oct.

1, 2018) (rejecting this invitation to modify the Court’s precedent). See also United States v. Johnson, 481 U.S. 681,

692 (1987) (reaffirming the Feres doctrine’s continued validity).

334 See, e.g., Johnson, 481 U.S. at 686 (“This Court has never deviated from this characterization of the Feres bar. Nor

has Congress changed this standard 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, 340 U.S. at 138

(1950))). Cf. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (noting that “stare decisis in

respect to statutory interpretation has ‘special force’” because “Congress remains free to alter” the Court’s

interpretation, especially where “Congress has long acquiesced in” that interpretation) (quoting Patterson v. McLean

Credit Union, 491 U.S. 164, 172-73 (1989))).

335 See, e.g., Maj. Deirdre G. Brou, Alternatives to the Judicially Promulgated Feres Doctrine, 192 MIL. L. REV. 1, 79

(2007) (predicting that “Congress, not the judiciary, will dismantle the Feres doctrine, if it is to be eliminated”).

336 See, e.g., Rosky, supra note 44, at 962 (arguing that, in order to promote uniform and fair results in FTCA cases,

Congress should add “a new, separate provision” to the FTCA “establishing that claims arising from the intentional

torts of law enforcement officers are governed by a federal scope of employment rule, rather than by the law of any

particular state”); Jonathan Turley, Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the

Military System of Governance, 71 GEO. WASH. L. REV. 1, 4, 82 (2003) (arguing that “the Feres doctrine was

fundamentally flawed from its inception on both a constitutional and statutory basis,” and suggesting that Congress

amend “the FTCA to reaffirm that only combat-related injuries are exempted from the Act”). Cf. Booth v. United

States, 914 F.3d 1199, 1205 (9th Cir. 2019) (suggesting that Congress could legislate to toll the FTCA’s statute of

limitations for plaintiffs under the age of 18 until they reach the age of majority).

337 For instance, the 116th Congress recently enacted the John D. Dingell, Jr. Conservation, Management, and

Recreation Act, which provides in relevant part that the FTCA “shall not apply to [specified] organization[s] or

individual[s] carrying out a privately requested good Samaritan search-and-recovery mission” pursuant to the act. Pub.

L. No. 116-9 § 9002(b)(2)(C) (2019) (codified at 43 U.S.C. § 1742a(b)(2)(C)).

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 expanding or narrowing the FTCA’s definition of “employee”338—which, as discussed above, is presently relatively broad, but does not include independent

contractors; 339

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, modify, or

eliminate existing exceptions. 340

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, 341

but could concomitantly increase the total amount of money the United States

must pay to tort claimants each year 342

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.” 343

Conversely, narrowing the FTCA’s immunity waiver could result in a larger

number of private individuals bearing the costs of government employee misfeasance, 344

but

could result in a cost savings to the United States 345

and decrease the potential for judicial

interference with federal operations. 346

338 For example, the 116th Congress enacted the Consolidated Appropriations Act for 2019, which provides in relevant

part that “an eligible individual who is employed in any project funded under title V of the Older Americans Act of

1965 . . . and administered by the Forest Service shall be considered to be a Federal employee for purposes of [the

FTCA].” See Pub. L. No. 116-6, 133 Stat. 13, 247 (2019).

Other bills pending in the 116th Congress likewise propose to expand the scope of entities that qualify as federal

employees for purposes of the FTCA. See, e.g., TALENT Act, H.R. 2944, 116th Cong. § 2 (1st Sess. 2019) (proposing

to deem any “employee of a private-Sector organization who is assigned to a Department of Defense organization

under” the proposed legislation “an employee of the Department of Defense for the purposes of . . . the [FTCA]”); No

Federal Funding to Benefit Sanctuary Cities Act, H.R. 1885, 116th Cong. § 2(b) (1st Sess. 2019) (proposing to classify

certain state and municipal officers, employees, and agents as “employee[s] of the Federal Government” for the

purposes of the FTCA under specified conditions). As of the date of this report, at least one such bill has passed the

House of Representatives. See Damon Paul Nelson and Matthew Young Pollard Intelligence Authorization Act for

Fiscal Years 2018, 2019, and 2020, H.R. 3494, 116th Cong. § 306 (1st Sess. 2019) (proposing to deem any “employee

of a private-sector organization who is detailed to an element of the intelligence community” to be “an employee of

th[at] element for the purposes of” the FTCA). See also Damon Paul Nelson and Matthew Young Pollard Intelligence

Authorization Act for Fiscal Years 2018, 2019, and 2020, S. 1589, 116th Cong. § 304 (1st Sess. 2019) (companion bill

pending in Senate).

339 See supra “Employees and Independent Contractors.”

340 See, e.g., Tribal Law and Order Reauthorization and Amendments Act of 2019, S. 210, 116th Cong. § 104 (1st Sess.

2019) (“While acting under the authority granted by the Secretary through an Indian Self-Determination and Education

Assistance Act . . . contract or compact, a tribal law enforcement officer shall be deemed to be a Federal law

enforcement officer for purposes of . . . the [FTCA].”); ACCESS Act, H.R. 1326, 116th Cong. § 604(a) (1st Sess. 2019)

(providing that, for the purposes of the FTCA, “any action by an agent or employee of the United States to manage or

allow the use of Federal land for purposes of target practice or marksmanship training by a member of the public shall

be considered to be the exercise or performance of a discretionary function”).

341 Cf. Pfander & Aggarwal, supra note 33, at 424 (noting that Congress enacted the FTCA “to provide compensation

to victims of government wrongdoing”).

342 See Rosky, supra note 44, at 909 n.48 (“This broad and basic federal interest in determining the sweep of the waiver

encompasses a more specific interest—the government’s fiscal interest in the outcome of claims . . . . Payment of

judgments . . . comes from the United States’ purse.”).

343 See Niles, supra note 16, at 1300.

344 See id. at 1295 (arguing that the “government is a more appropriate candidate to bear the costs incurred by its

negligent acts than the private citizen who sustains an injury through no ‘fault’ of her own”).

345 See id. at 1300 (noting potential “concerns . . . about the integrity and solvency of the public fisc”).

346 See, e.g., United States v. Johnson, 481 U.S. 681, 690 (1987) (opining that the Feres doctrine limits judicial

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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. 347

As discussed above, 348

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.” 349

Opponents of Feres argue that the doctrine inappropriately bars servicemembers from obtaining

recourse for their injuries. 350

Critics maintain that Feres’s bar on FTCA suits creates especially

unjust results with respect to servicemembers who suffer injuries in military hospitals 351

and

servicemembers who are victims of sexual abuse, 352

as those types of tortious actions are far

removed from the core functions of the military. 353

Some Members of Congress, 354

judges, 355

and

legal commentators 356

have therefore advocated eliminating or narrowing the Feres doctrine to

allow servicemembers to pursue certain tort claims against the United States under the FTCA.

interference “in sensitive military affairs at the expense of military discipline and effectiveness” (quoting United States

v. Shearer, 473 U.S. 52, 59 (1985))).

347 See, e.g., Feres Doctrine—A Policy in Need of Reform?: Hearing Before the H. Subcomm. on Military Personnel,

116th Cong. (2019) [hereinafter 2019 Feres Hearing]; The Feres Doctrine: An Examination of This Military Exception

to the Federal Tort Claims Act: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 1–133 (2002) [hereinafter

2002 Feres Hearing]; The Feres Doctrine and Military Medical Malpractice: Hearing Before the Subcomm. on Admin.

Prac. & Proc. of the S. Comm. on the Judiciary, 99th Cong. 9 (1986) [hereinafter 1986 Feres Hearing] (statement of

Sen. Edward M. Kennedy) (“Over the period of the past years we have had seven hearings on the Feres doctrine.”).

348 See supra “The Feres Doctrine.”

349 Feres v. United States, 340 U.S. 135, 146 (1950). See also, e.g., Johnson, 481 U.S. at 692 (reaffirming Feres).

350 See, e.g., Richard E. Custin et al., Is it Time to Revisit the Feres Doctrine? The Disparate Treatment of Active Duty

Military Personnel Under the Federal Tort Claims Act, 22 J.L. BUS. & ETH. 1, 2 (2016) (criticizing what the authors

characterize as “the patent inequity of the Feres doctrine”); Willke, supra note 284, at 282 (arguing that Feres “has led

to unfairness between civilians and members of the military”); Brou, supra note 335, at 4 (maintaining that “[t]he Feres

doctrine . . . is too broad in scope and goes beyond protecting military decision making and discipline”).

351 See, e.g., Willke, supra note 284, at 263–64 (“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.”).

352 See, e.g., Hershkoff, supra note 40, at 219 (maintaining that “[t]he combined effect of the exception for assault and

battery with the Feres Doctrine creates a toxic brew for claimants . . . who allege claims of sexual abuse or rape”);

Ann-Marie Woods, A “More Searching Judicial Inquiry”: The Justiciability of Intra-Military Sexual Assault Claims,

55 B.C. L. REV. 1329, 1331 (2014) (arguing that “[f]or countless victims of military sexual assault, the Feres doctrine

has closed the doors of civilian courthouses”).

353 See, e.g., Turley, supra note 336, at 57 (describing the military’s medical operations as “collateral to the core

functions of the military”); id. at 30-31 (2003) (arguing that “intentional torts like assault and battery” are “by

definition unrelated to any legitimate military function”).

354 See, e.g., 2002 Feres Hearing 1 (statement of Sen. Arlen Specter) (opining that Feres “has produced anomalous

results which reflect neither the will of the Congress nor common sense”).

355 See, e.g., Daniel v. United States, 139 S. Ct. 1713, 1713 (2019) (Thomas, J., dissenting from the denial of certiorari)

(opining that “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has

received” (quoting Lanus v. United States, 570 U.S. 932, 933 (2013) (Thomas, J., dissenting from denial of

certiorari))); Ortiz v. United States ex rel. Evans Army Cmty. Hosp., 786 F.3d 817, 818 (10th Cir. 2015) (“In the many

decades since its inception, criticism of the so-called Feres doctrine has become endemic.”), cert. dismissed, 137 S. Ct.

1431 (2017); 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].”).

356 See, e.g., Brou, supra note 335, at 72 (arguing that the Feres doctrine “is too broad in scope”); Turley, supra note

336, at 4, 82 (arguing that “the Feres doctrine was fundamentally flawed from its inception on both a constitutional and

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Supporters of Feres have instead urged Congress to retain the Feres doctrine in its current

form. 357

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.” 358

Supporters further maintain that entertaining tort suits by servicemembers

against the United States would increase the government’s exposure to monetary liability. 359

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. 360

Congress has periodically held hearings to assess whether to retain, abrogate, or modify the Feres

doctrine. 361

The House Armed Services Committee’s Subcommittee on Military Personnel

conducted the most recent of those hearings on April 30, 2019. 362

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. 363

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

statutory basis” and suggesting that Congress amend “the FTCA to reaffirm that only combat-related injuries are

exempted from the Act”).

357 See, e.g., 2002 Feres Hearing 3 (statement of Paul Harris, Deputy Assoc. Att’y Gen., Dep’t of Justice) (maintaining

that “the Feres doctrine continues to be a sound and necessary limit on the FTCA’s waiver of sovereign immunity,

essential to the accomplishment of the military’s mission and to the safety of the Nation”); Paul Figley, In Defense of

Feres: An Unfairly Maligned Opinion, 60 AM. U. L. REV. 393, 395 (2010) [hereinafter Figley, Unfairly Maligned]

(arguing that “the Supreme Court correctly decided the Feres case in 1950”).

358 1986 Feres Hearing 20 (statement of Robert L. Willmore, Deputy Assistant Att’y Gen.). See also 2002 Feres

Hearing 4 (statement of Rear Admiral Christopher E. Weaver) (contending that “allowing service members to bring

suits” against the United States under the FTCA would “interfere with mission accomplishment and adversely affect

[the military’s] operational readiness”).

359 1986 Feres Hearing 21 (statement of Robert L. Willmore, Deputy Assistant Att’y Gen.).

360 See Figley, Unfairly Maligned, supra note 357, at 453 (arguing that servicemembers have access to a “full panoply

of service members’ and veterans’ benefits”); 2002 Feres Hearing 3 (statement of Paul Harris, Deputy Assoc. Att’y

Gen., Dep’t of Justice) (“[T]he military service does not leave those permanently injured in the line of duty

uncompensated. Congress has attended to such injuries or death through the creation of an efficient and comprehensive

compensation system.”); Joan M. Bernott, Fairness and Fares [sic]: A Critique of the Presumption of Injustice, 44

WASH. & LEE L. REV. 51, 69–70 (1987) (“Servicemen already enjoy greater access to federal relief for most injury [sic]

than do all other federal employees; equity does not compel exacerbating this disparity by revoking or limiting

Feres.”). For an analysis of the statutory benefits to which injured servicemembers may be entitled, see CRS In Focus

IF11102, Military Medical Malpractice and the Feres Doctrine, by Bryce H. P. Mendez and Kevin M. Lewis.

361 See, e.g., 2002 Feres Hearing 1–133; 1986 Feres Hearing 9 (statement of Sen. Edward M. Kennedy) (“Over the

period of the past years we have had seven hearings on the Feres doctrine.”).

362 See generally 2019 Feres Hearing.

363 See, e.g., Nicole Melvani, The Fourteenth Exception: How the Feres Doctrine Improperly Bars Medical Malpractice

Claims of Military Service Members, 46 CAL. W. L. REV. 395, 433 (2010) (“Congress should . . . clarify that the

exceptions specifically enumerated in the [FTCA] are the only limitations on active duty service members’ ability to

bring suit for injuries sustained from the negligence of government employees.”). Notably, those exceptions would

include Section 2680(j), which, as discussed above, see supra “The Combatant Activities Exception,” preserves the

United States’ sovereign immunity against “any claim arising out of the combatant activities of the military or naval

forces, or the Coast Guard, during time of war.” 28 U.S.C. § 2680(j).

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malpractice. 364

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. 365

To that end, Congress has periodically introduced legislation proposing to modify the Feres

doctrine. 366

Most recently, the House of Representatives passed Section 729 of the National

Defense Authorization Act for Fiscal Year 2020 (Act), which, subject to various conditions and

prerequisites, 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. 367

As of the date of this report, the House

and Senate are resolving differences in their respective versions of the Act. 368

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. Congress enacted the FTCA

in part to eliminate the need to pass private bills to compensate persons injured by the federal

government, 369

but Congress still retains some authority to pass private bills if it so desires. 370

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. 371

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.” 372

364 See, e.g., 1986 Feres Hearing 11 (statement of Sen. Edward M. Kennedy) (“The bill would only allow suits for

medical malpractice in peacetime, for non-combat related medical damages . . . .”); Melvani, supra note 363, at 434

(“If Congress is unprepared to completely abolish the Feres doctrine, it should at the very least rescind the doctrine for

medical malpractice claims.”).

365 See 42 U.S.C. §§ 300aa-1-300aa6.

366 See generally Melissa Feldmeier, At War With the Feres Doctrine: The Carmelo Rodriguez Military Medical

Accountability Act of 2009, 60 CATH. U. L. REV. 145, 148–49, 162–66 (2010) (surveying bills that Congress introduced

between 1985 and 2009). See also Lewis, supra note 276.

367 H.R. 2500, 116th Cong. § 729(a) (1st Sess.).

368 See National Defense Authorization Act for Fiscal Year 2020, S. 1790, 116th Cong. (1st Sess. 2019) (version

engrossed in Senate).

369 See supra “Background.”

370 See Fuller, supra note 17, at 378–79 (“[P]rivate bills today are far from dead . . . . While by no means easy or

commonplace, it remains possible to obtain private legislative relief today—a possibility that should not be forgotten in

discussions of the FTCA and its scope.”).

371 See Hershkoff, supra note 40, at 243 (“I suggest reinvigorating a claimant’s right to petition for a private bill

whenever a claim is not cognizable under the FTCA—a result that is not foreclosed by the current statute but the

practice is virtually dormant.”).

372 Longstreth, supra note 161, at 400 n.11 (listing examples).

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Author Information

Kevin M. Lewis

Legislative Attorney

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