Waiver of Sovereign Immunity: FTCA, Exceptions & Deadlines

A waiver of sovereign immunity is a statute in which the government agrees to let itself be sued in a defined category of cases. The federal government is immune from suit by default, and only Congress can lift that immunity. The main federal waivers are the Federal Tort Claims Act (negligence by federal employees), the Tucker Act (contract disputes), and the Administrative Procedure Act (non-monetary challenges to agency action). Each comes with strict filing procedures, short deadlines, and exceptions that keep broad areas of government conduct off-limits.

Why the Waiver Has to Be Explicit

Courts will not assume the government has agreed to be sued. A waiver has to appear in clear, unmistakable statutory language, and any ambiguity is read in the government’s favor.¹ Only Congress can grant one. A cabinet secretary or agency head cannot decide on their own to let someone sue, and courts will not stretch a waiver’s language beyond what the statute actually says. The practical effect: the scope of every waiver is locked to the text, and reading that text carefully is the first step in any claim against the government.

The Federal Tort Claims Act

The FTCA is the primary route for someone injured by a federal employee’s negligence. It gives federal district courts jurisdiction over claims for property damage, personal injury, or death caused by a government employee acting within the scope of employment.² The government is held to the same standard as a private person in the same circumstances, so the law of the state where the incident happened controls whether the conduct was negligent.³

The FTCA covers negligence and certain wrongful acts. It does not reach every kind of claim, and the exceptions below carve out large categories of government conduct.

Filing an FTCA Claim

You cannot go straight to court. Federal law requires you to first present an administrative claim to the agency whose employee caused the harm, and skipping that step means dismissal regardless of the merits.⁴

The standard filing is Standard Form 95, though any written notice containing the required information will do.⁵ The form asks for the agency’s name, a description of what happened, and your damages. That last piece has to be a “sum certain,” an exact dollar figure. “To be determined” or a blank is fatal.⁶ Back the number with documentation (medical bills, repair estimates, wage records, police reports) and send the package by certified mail with return receipt requested so delivery is on the record.

Deadlines You Cannot Miss

Two deadlines decide whether an FTCA claim survives.

Two years to file the administrative claim. The claim must reach the appropriate agency within two years of the date the injury occurred or, in some cases, the date it was discovered.⁷
Six months to sue after denial. Once the agency mails a written denial, you have six months to file suit in federal district court. Let the window close and the claim is permanently barred.⁷

Between those two deadlines sits the agency’s review period. The agency has six months to investigate and respond after receiving the claim. If it stays silent past that point, you can treat the silence as a denial and go to court.⁴ The agency may also offer a settlement during this stretch. Accept an administrative settlement and attorney fees are capped at 20% of the amount; reject it, go to court, and win, and the cap rises to 25%.⁸

Exceptions That Keep Immunity Intact

The FTCA’s waiver is riddled with carve-outs. Even clearly wrongful conduct stays immune if the claim falls into one of the statute’s listed exceptions.⁹

The Discretionary Function Exception

The government’s strongest shield. Any claim based on a federal employee’s exercise of judgment or discretion is excluded, even if the judgment was poor, on the theory that courts should not second-guess policy decisions grounded in social, economic, or political considerations.⁹ The limit: when a statute or regulation strips the employee’s discretion by mandating a specific action, failure to perform that mandatory duty is not a protected discretionary choice. Most litigation under this exception turns on whether the employee had a real choice or a required one.

Intentional Torts

Deliberate wrongs by federal employees (assault, false arrest, defamation, fraud) are generally outside the FTCA. There is a notable carve-back for federal law enforcement officers: when an officer empowered to make arrests or execute searches commits assault, false arrest, or similar abuses, the FTCA does allow suit against the government.⁹

Military Service Injuries

Under the Feres doctrine, active-duty service members cannot sue the federal government for injuries sustained during military service. Congress partially addressed military medical care in 2020 by creating an administrative claims process at the Department of Defense for injuries caused by a military healthcare provider’s negligence, with payments over $100,000 reported to the Treasury.¹⁰ Attorney fees under that process are capped at 20%.

Other Excluded Categories

The FTCA also bars claims arising from tax collection, postal losses, quarantine orders, certain admiralty matters, and the fiscal operations of the Treasury.⁹ Each either has its own separate claims process or reflects a decision that the government should not face tort liability in that area.

Contract Disputes Under the Tucker Act

Contract claims against the United States run on a different track. The Tucker Act gives the U.S. Court of Federal Claims jurisdiction over monetary claims founded on contracts with the United States, including express written agreements and implied-in-fact contracts.¹¹

Contractors dealing with executive agencies also work through the Contract Disputes Act. First you obtain a written decision from the contracting officer. If you disagree, you have two paths: appeal to an agency board of contract appeals within 90 days, or file a new action in the Court of Federal Claims within 12 months.¹² The court route gives you a fresh hearing rather than review of the agency’s decision. The statute of limitations for Tucker Act claims is six years from the date the claim first accrues.¹³

Non-Monetary Challenges to Agency Action

Not every claim against the government is about money. The Administrative Procedure Act waives sovereign immunity for suits seeking non-monetary relief against agencies. If you want a court to order an agency to stop doing something unlawful, or to compel it to act, immunity is not a bar.¹⁴ The waiver does not apply if another statute specifically forbids the relief you seek, and you still need a final agency action that affected you. This is the vehicle regulated businesses, immigration petitioners, and environmental groups use to challenge federal agency conduct.

Suing a State Is a Separate Problem

Federal waivers do not reach the states. The Eleventh Amendment bars lawsuits against states in federal court unless the state consents,¹⁵ and each state controls the scope of its own immunity in its own courts. Every state has enacted a tort claims statute, but coverage, notice periods, and damage caps vary widely from one jurisdiction to the next, and legislatures revise the caps over time. Before taking any step against a state or local government entity, check that state’s specific tort claims act, because the procedural requirements often differ substantially from the federal process.

Limits on What You Can Recover

Winning against the federal government is not the same as winning against a private defendant. The FTCA prohibits punitive damages. Liability is limited to compensation for actual losses, and no court can tack on extra damages to punish the government.³

There is no jury. Federal tort claims are tried by a judge alone, with a narrow exception for certain tax refund cases.¹⁶

Attorney fees are capped by statute. An attorney who litigates an FTCA case in court cannot collect more than 25% of the judgment or settlement, and if the case resolves at the administrative stage the cap drops to 20%. Charging more is a federal crime punishable by a fine of up to $2,000, imprisonment for up to one year, or both.⁸ Many state tort claims acts impose their own damage caps as well, so expected recovery against any government defendant should be sized against the applicable statutory ceiling before you file.

1
Legal Information Institute. Waiver of State Sovereign Immunity
2
Office of the Law Revision Counsel. 28 USC 1346 – United States as Defendant
3
Office of the Law Revision Counsel. 28 USC 2674 – Liability of United States
4
Office of the Law Revision Counsel. 28 USC 2675 – Disposition by Federal Agency as Prerequisite
5
U.S. Department of Justice. Documents and Forms
6
General Services Administration. Standard Form 95 – Claim for Damage, Injury, or Death
7
Office of the Law Revision Counsel. 28 USC 2401 – Time for Commencing Action Against United States
8
Office of the Law Revision Counsel. 28 USC 2678 – Attorney Fees; Penalty
9
Office of the Law Revision Counsel. 28 USC 2680 – Exceptions
10
Office of the Law Revision Counsel. 10 USC 2733a – Medical Malpractice Claims by Members of the Uniformed Services
11
Office of the Law Revision Counsel. 28 USC 1491 – Claims Against United States Generally
12
Office of the Law Revision Counsel. 41 USC 7104 – Contractors Right of Appeal From Decision by Contracting Officer
13
Office of the Law Revision Counsel. 28 USC 2501 – Time for Filing Suit
14
Office of the Law Revision Counsel. 5 USC 702 – Right of Review
15
Congress.gov. U.S. Constitution – Eleventh Amendment
16
Office of the Law Revision Counsel. 28 USC 2402 – Jury Trial in Actions Against United States