Federal Tort Claims Act
Based on Wikipedia: Federal Tort Claims Act
The Day a Bomber Hit the Empire State Building
On a foggy Saturday morning in July 1945, Lieutenant Colonel William F. Smith Jr. was piloting a B-25 bomber through thick clouds over Manhattan. He was lost. At 9:40 in the morning, traveling at roughly 200 miles per hour, his plane slammed into the north face of the Empire State Building, between the 78th and 80th floors.
Fourteen people died. The crash tore an eighteen-foot hole in the building's facade. Burning fuel cascaded down elevator shafts. One of the plane's engines shot completely through the building and out the other side, landing on a nearby rooftop.
It was a tragedy. But it was also a legal problem.
The families of the victims wanted to sue. The pilot was a military officer, flying a military aircraft, on a military mission. He worked for the federal government. But here's the thing about suing the federal government in 1945: you couldn't. Not really. The United States had something called sovereign immunity, an ancient legal doctrine inherited from English common law. The basic idea was simple and, to modern ears, rather outrageous: the king can do no wrong. And since the government is the successor to the king, the government can do no wrong either. Or at least, you can't sue it when it does.
Eight months after the crash, the government offered settlement money to the victims' families. Some accepted. Others refused and decided to fight.
Their fight helped push Congress to finally pass a law that had been languishing in legislative limbo for more than two decades. In August 1946, President Truman signed the Federal Tort Claims Act, or FTCA, into law. Congress even made it retroactive to 1945, specifically so the Empire State Building victims could seek their day in court.
For the first time in American history, ordinary citizens could sue their own government for negligence.
What Sovereign Immunity Actually Means
To understand why the FTCA was such a big deal, you need to understand what it replaced.
Sovereign immunity sounds like an abstract legal concept, but its practical effects were brutally concrete. If a postal truck ran a red light and killed your spouse, you had no recourse against the government. If a federal employee's negligence burned down your business, tough luck. If military doctors botched your surgery, you couldn't collect a dime in damages.
The only way to get compensation was to petition Congress directly. Literally. You had to convince your representative to introduce a private bill on your behalf, then hope it passed both chambers. As you might imagine, this system was capricious, slow, and deeply unfair. Whether you got compensated depended less on the merits of your case than on your political connections and Congress's mood.
By the early 20th century, the absurdity of this situation was becoming impossible to ignore. The federal government had grown enormous. It employed millions of people. It operated vehicles, buildings, hospitals, and military bases across the country and around the world. The opportunities for government employees to accidentally harm private citizens had multiplied exponentially, but the legal system for addressing those harms remained stuck in the era of King George III.
The Basic Bargain of the FTCA
The Federal Tort Claims Act created a straightforward trade-off. Citizens gained the right to sue the federal government in federal court for most torts, which is the legal term for civil wrongs that cause harm. In exchange, the government got some important protections and limitations.
First, some definitions. A tort is different from a crime. Crimes are offenses against society, prosecuted by the government, and punishable by imprisonment or fines paid to the state. Torts are wrongs against individuals, pursued through civil lawsuits, with the remedy being compensation paid to the injured party. The same action can sometimes be both. If someone punches you in the face, the state might prosecute them for assault, and you might separately sue them for battery. But many torts aren't crimes at all. Negligence, for instance, usually isn't illegal in the criminal sense, but it can absolutely be the basis for a lawsuit.
Under the FTCA, the federal government can be held liable for torts "in the same manner and to the same extent as a private individual under like circumstances." This is crucial language. It means the government doesn't get special treatment. If a private employer would be liable for an employee's negligent driving, then the federal government is liable when its employee drives negligently too.
But the Act also imposed significant limitations. No punitive damages, for one thing. Punitive damages are the extra money juries sometimes award to punish particularly egregious behavior and deter others from acting similarly. The government, apparently, doesn't need that kind of motivation to behave itself.
No interest on judgments prior to the verdict, either. This might sound technical, but it matters. Lawsuits take years. If you're owed a hundred thousand dollars, and the case takes five years to resolve, normally you'd expect some interest on that money. Not against the government.
The Discretionary Function Exception
The most important limitation in the FTCA is something called the discretionary function exception, and it's caused endless headaches for plaintiffs and courts alike.
The exception works like this: you cannot sue the government for decisions that involve judgment or discretion. Only for failures to follow established rules or procedures.
This distinction sounds cleaner than it is. Consider a building inspector who fails to notice code violations that later cause injuries. If there's a checklist the inspector was supposed to follow, and they didn't follow it, that's a ministerial failure, and you can potentially sue. But if the inspector exercised professional judgment about what to examine and how thoroughly, that might be discretionary, and you're out of luck.
The rationale for this exception makes some sense. Courts don't want to second-guess every policy decision the government makes. Should the National Park Service build a guardrail at this particular overlook? Should the Food and Drug Administration require additional testing for this drug? These are complex decisions involving competing priorities, limited budgets, and genuine uncertainty. Having judges and juries constantly evaluate whether bureaucrats made the "right" call would be paralyzing.
But the exception has also been stretched to cover situations that seem more like ordinary negligence than high-level policy decisions. The boundaries remain contested and frequently litigated.
In January 2025, the Supreme Court took up a case called Martin versus United States that sits right at this uncomfortable intersection. The question: what happens when a law enforcement officer commits an intentional tort while exercising discretionary judgment? The FTCA has a specific provision, called the law enforcement proviso, that allows lawsuits for intentional torts committed by investigative or law enforcement officers. But does the discretionary function exception override that proviso?
In June 2025, the Supreme Court unanimously resolved the tension in favor of the discretionary function exception. The law enforcement proviso doesn't automatically override discretionary function protection. This means some plaintiffs who thought they had a clear path to sue for law enforcement misconduct may find their claims blocked if the officer's conduct involved discretionary decisions.
The Military Exception
If you're a member of the armed forces injured due to military negligence, you face an even more formidable barrier: the Feres doctrine.
Named after a 1950 Supreme Court case, Feres versus United States, this judge-made rule holds that service members cannot sue the government for injuries that arise out of or are incident to military service. The reasoning offered by the Court was multifaceted: military discipline would be undermined if soldiers could sue their superiors, different states have different tort laws and it would be unfair for recovery to depend on where someone happened to be stationed, and Congress provides other compensation systems for injured veterans.
The Feres doctrine has been harshly criticized for decades. It has prevented service members from suing over everything from botched surgeries at military hospitals to sexual assault by fellow soldiers. Critics argue it makes the military effectively unaccountable for negligence that would expose any other employer to liability.
Yet the doctrine persists. The Supreme Court has repeatedly declined to overturn it, suggesting that any change should come from Congress. And Congress, despite periodic proposals, has never mustered the votes to abolish or significantly limit the rule.
A related limitation applies to combat activities. Even civilian contractors working alongside the military may find their claims barred if the alleged negligence arose from combat operations. In 2019, a servicemember named Hencely, who was wounded in a suicide bombing at a U.S. military base in Afghanistan, tried to sue the government contractor whose subcontractor had actually carried out the attack. The Fourth Circuit Court of Appeals said no. The FTCA bars suits arising from military combat activities during wartime. That case has now reached the Supreme Court, where the justices will have to decide just how far the combat exception extends.
Suing the Government: A Practical Guide
If you do have a viable claim against the federal government, the FTCA creates a specific process you must follow. Miss a step or a deadline, and your case is dead.
First, you must file an administrative claim with the federal agency responsible for the harm. This isn't a lawsuit. It's a formal written demand presented to the agency itself, giving them a chance to investigate and potentially settle before courts get involved. You have two years from the date your claim accrues to file this administrative claim. Two years sounds like plenty of time, but "accrual" is a legal term with specific meaning, and determining exactly when a claim accrued can itself become a complicated dispute.
Once you file your administrative claim, the agency has six months to respond. If they deny your claim, or if they simply ignore it for six months, you then have six more months to file an actual lawsuit in federal district court. Miss that six-month window, and you're done. Your claim is time-barred forever.
These procedural requirements are strictly enforced. Courts have dismissed cases where plaintiffs filed directly in court without first submitting an administrative claim. They've dismissed cases where plaintiffs missed the filing deadlines by days. The government, having waived its sovereign immunity to this limited extent, insists on the precise procedures Congress established.
One more thing: FTCA cases are tried by judges, not juries. The Seventh Amendment right to a jury trial doesn't apply when you're suing the government. A federal judge will hear your case, evaluate the evidence, and decide both liability and damages.
The Westfall Act and Federal Employee Protection
The FTCA had an interesting side effect that Congress eventually decided to address. By making the government liable for its employees' negligence, the Act created an odd incentive. Why sue the deep-pocketed federal government when you could sue the individual employee who actually caused the harm? Employees might have personal assets. They might be easier to get to trial. And unlike the government, you could seek punitive damages against them.
For decades, courts developed common-law doctrines to protect federal employees from personal liability for actions taken in the scope of their employment. But in 1988, the Supreme Court threw a wrench in the works with its decision in Westfall versus Erwin. The Court ruled that federal employees could be personally liable for negligence, even when they were just doing their jobs.
Congress responded almost immediately with the Federal Employees Liability Reform and Tort Compensation Act of 1988, better known as the Westfall Act. This amendment to the FTCA provides that when a federal employee is sued for conduct within the scope of their employment, the United States automatically substitutes in as the defendant. The employee is dismissed from the case. Any recovery comes from the government, not the individual.
This protection is significant. It means federal employees can do their jobs without constantly worrying about personal lawsuits. A postal worker who gets in an accident while delivering mail won't lose their house. A government doctor who makes an honest mistake won't be personally bankrupted. The tradeoff is that plaintiffs are limited to the remedies available under the FTCA, including its ban on punitive damages.
Modern Applications
The FTCA remains vitally relevant. Every year, thousands of claims are filed against the federal government.
Consider a case from Portland, Oregon, during the George Floyd protests in 2020. A protester was struck in the forehead by an impact munition, essentially a less-lethal projectile, fired by a U.S. marshal. The protester sued the individual officers for excessive force, invoking constitutional protections. The district court judge dismissed that claim but noted that the protester could still seek damages under the FTCA. The route would be different, the procedures more cumbersome, but the avenue for potential recovery remained open.
In 2022, a Navy sailor won a significant victory through the FTCA. While off-duty, the sailor was hit by a vehicle driven by another active-duty military member. Because the injury didn't arise from the sailor's own military service, the Feres doctrine didn't apply. The case settled for nearly half a million dollars.
These cases illustrate the intricate boundaries of government liability. Whether you can sue, and how much you can recover, depends on a complex web of factors: who harmed you, in what capacity, where it happened, what kind of conduct was involved, and whether any of the numerous exceptions apply.
The Texas City Disaster and the Limits of Liability
The first major test of the FTCA came just a year after its passage, under circumstances that were as tragic as they were legally significant.
In April 1947, the French cargo ship Grandcamp was docked at Texas City, Texas, loading fertilizer destined for war-torn Europe. The fertilizer was ammonium nitrate, a compound that can be stable and useful or, under the wrong conditions, devastatingly explosive. The ammonium nitrate being loaded had been manufactured by the U.S. government.
A fire broke out in the ship's hold. Rather than flooding the compartment with water, which might have damaged the cargo, the crew tried to fight the fire conventionally. Shortly before 9:15 in the morning, the Grandcamp exploded. The blast was one of the largest non-nuclear explosions in history. It destroyed much of the port, killed nearly 600 people, and injured thousands more.
The victims and their families sued the federal government under the newly minted FTCA. They argued that the government had been negligent in manufacturing, packaging, and labeling the ammonium nitrate. The case worked its way up to the Supreme Court.
In 1953, the Court ruled against the plaintiffs. The decision established that the discretionary function exception barred claims arising from government decisions about how to manufacture and handle materials, even when those decisions proved catastrophically wrong. The Texas City disaster victims got nothing from the federal government.
Congress, perhaps embarrassed by this outcome, eventually passed a special law compensating the victims outside the FTCA framework. But the legal precedent stood. The discretionary function exception had teeth.
Sovereign Immunity Around the World
The United States was relatively late to the game of allowing citizens to sue their own governments. England, whose common law originally gave us the doctrine of sovereign immunity, had begun chipping away at it earlier. Most modern democracies now have some mechanism for holding their governments accountable for tortious conduct.
But the details vary enormously. Some countries route all claims against the government through specialized administrative courts. Others, like the U.S., use the regular court system but impose procedural requirements and liability caps. Some nations have eliminated sovereign immunity almost entirely for routine negligence while maintaining it for military and foreign affairs. Others retain much broader protections.
The theoretical justifications for sovereign immunity have also evolved. The original "king can do no wrong" rationale is obviously untenable in a democracy. Modern defenders of limited immunity tend to emphasize practical concerns: governments make countless decisions every day, unlimited liability could chill beneficial activities, and alternative compensation systems like workers' compensation and veterans' benefits may better serve injured parties than tort litigation.
Critics counter that accountability matters. When the government knows it can be sued for negligence, it has stronger incentives to act carefully. Immunity, by contrast, can breed carelessness and abuse.
The Ongoing Debate
Nearly eighty years after its passage, the Federal Tort Claims Act remains controversial. Its defenders argue it strikes a reasonable balance between accountability and government function. Its critics find the exceptions too broad, the procedures too cumbersome, and the remedies too limited.
The Feres doctrine, in particular, continues to generate outrage. Military families whose loved ones died due to medical malpractice at military hospitals have lobbied Congress for decades to abolish or limit the rule. Veterans' groups have called it unjust. Even some Supreme Court justices, while declining to overturn the doctrine themselves, have urged Congress to reconsider it.
The discretionary function exception also prompts ongoing debate. Courts continue to struggle with drawing the line between protected policy judgments and unprotected operational negligence. The 2025 Martin decision may clarify some boundaries, but new cases will inevitably raise new questions.
And fundamentally, there's an unresolved tension at the heart of the whole enterprise. We want a government that can act decisively, make difficult judgments, and implement complex policies without being paralyzed by litigation. We also want a government that can be held accountable when it injures people through carelessness or misconduct. Balancing these competing values is genuinely hard, and the FTCA represents Congress's best attempt at a workable compromise.
Whether that compromise is fair depends on whom you ask, and probably on whether you've ever tried to navigate its requirements while recovering from injuries caused by government negligence.
For the families of those killed in the Empire State Building crash eight decades ago, the FTCA represented a hard-won victory, proof that even the mightiest government must answer for its wrongs. For countless plaintiffs who've had their claims dismissed on procedural grounds or barred by one exception or another, the Act represents something less inspiring: a promise of accountability that remains frustratingly difficult to collect on.