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Navigating the Complexities of Federal Tort Claims Act Cases

February 20, 2024 John J. Scura III


The Federal Tort Claims Act (FTCA) is the set of laws that allow individuals to sue the Federal Government and its agencies/employees for negligence. It provides an avenue between private individuals and the federal government, allowing for legal recovery for negligence where the government would typically be immune from lawsuits. This act opens a pathway for individuals to seek compensation for injuries, property loss, or damages caused by the negligent or wrongful acts of federal employees performed within their official duties.

Section 1: Understanding the Federal Tort Claims Act

Overview of the FTCA: Enacted in 1946, the FTCA broke down the traditional barrier of sovereign immunity that protected the federal government from most lawsuits. The Act applies to a wide range of tortious actions, including, but not limited to, personal injury, property damage, and medical malpractice by federal healthcare providers.

Key Provisions: The FTCA includes several crucial provisions that attorneys must be familiar with:

- Scope: The Act covers acts performed by federal employees within the scope of their employment but does not extend to independent contractors hired by the government.

- Exceptions: Not all claims are allowed under the FTCA. The "discretionary function exception" shields the government from liability arising from discretionary acts, even if negligently performed. Additionally, the "intentional tort exception" generally excludes claims for intentional misconduct, though there are exceptions for certain acts like assault and battery by law enforcement officers.

Section 2: Eligibility and Preliminary Considerations

Who Can File a Claim: Any individual who has suffered harm due to the negligence or wrongful act of a federal employee can file a claim under the FTCA, provided the employee was acting within the scope of their official duties. It's important to note that the claim must be based on state law where the act occurred.

Preliminary Requirements: The FTCA mandates that claimants exhaust all administrative remedies before proceeding to court. This involves filing a detailed claim with the offending agency, outlining the incident, the injury or damage sustained, and the amount of money damages sought.

Section 3: The Claims Process – Make Sure to Fill Out That Claim Correctly

Filing an Administrative Claim: The first step is to complete Standard Form 95 (Claim for Damage, Injury, or Death) and submit it to the appropriate federal agency. This form requires a thorough description of the incident, evidence of the government's fault, and a specific claim amount. The most important aspect of this claim is that a SPECIFIC CLAIM AMOUNT must be contained on the form.

Agency Response: After submission, the agency has six months to investigate and make a decision. They may admit the claim and offer a settlement or deny the claim. If the agency fails to respond within six months, the claimant is deemed to have been denied, providing a basis to file a lawsuit in federal court.

Decision to Sue: If the claim is denied or not satisfactorily resolved, the claimant may initiate a lawsuit in federal court. This step must be taken within six months of the agency's denial of the claim.

Section 4: Litigating FTCA Cases

Jurisdiction and Venue: FTCA cases must be filed in the federal district court where the plaintiff resides or where the act occurred. Choosing the correct venue is crucial for the success of the case.

Challenges in FTCA Litigation: Litigating under the FTCA presents unique challenges, including navigating the discretionary function exemption and dealing with the government's sovereign immunity. Attorneys must be adept at arguing why their case falls within the Act's purview and does not fall under an exception.

Evidence and Damages: Successful FTCA claims require solid evidence that the federal employee's negligence or wrongful act caused the claimant's damages. The types of recoverable damages are often subject to state law, but they generally include actual damages like medical expenses, lost wages, and pain and suffering. Punitive damages are not recoverable against the United States.

Section 5: Practical Tips for Attorneys

Understanding the Nuances: Deep knowledge of the FTCA's intricacies and the relevant state tort laws is essential. Attorneys should familiarize themselves with the specific legal standards and procedural nuances applicable to their case.

Investigation and Preparation: Thorough preparation is key. Collect all relevant documents, witness statements, and expert testimonies. Preparing a compelling narrative that clearly demonstrates the government's liability is crucial for success.

Collaboration with Clients: Clear communication with clients is vital. Set realistic expectations and keep them informed about the progress of their case and the complexities involved in litigating against the federal government.

Section 6: Attorney Fees Limited and No Jury Trial:

Under the Federal Tort Claims Act is that counsel fees are limited. If the case is settled prior to suit being filed, the fees are limited to twenty percent (20%) of the net recovery. If the case goes to trial before the Federal District Court by way of a bench trial, the fees are increased to twenty-five percent (25%) of the award. Attorney’s fees are payable from the amount of the recovery, not on top of that recovery.

In an FTCA case, you do not have a right to a jury trial. The case is tried before a United States Federal District Court Judge. With a judge hearing the case there is less of a chance of a higher verdict.   The case has to be filed in the District where the incident occurred or the plaintiff resides.


The Federal Tort Claims Act offers a pathway for recourse against the federal government, but navigating FTCA cases requires a detailed understanding of the law, strategic preparation, and skilled litigation. Please call our offices in New Jersey and speak to one of our attorneys to go over your potential case if you suffered harm as the result of the negligence of a federal governmental or its employees.   Our firm accepts referrals from out-of-state attorneys because we have a Certified Civil Trial Attorney by the Supreme Court of New Jersey a referral fee can be provided without regard to the work performed by the referring attorney.  If you have a New Jersey FTCA case and you have been injured or you are an attorney looking to refer a FTCA case, please contact our firm for a free analysis of the merits of your case.



John J. Scura III

John fights hard for his clients and tries to educate them so they understand what is going on with their particular legal problem. John has been Certified by The Supreme Court of New Jersey as a Civil Trial Attorney. Whether it is a personal injury case, bankruptcy case, litigation case or other type of matter, John wants his clients to participate in the decision making process toward solving their problem in the best way possible.

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