Federal Tort Claims Act: Suing the U.S. Government in Georgia

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A Postal Service truck rear-ends a commuter on an Atlanta interstate. A patient at a Veterans Affairs hospital in Augusta is harmed by a clinician’s negligence. A visitor is injured by a hazard on federal property. When the negligent party works for the United States rather than a private business or a Georgia government, neither state tort rules alone nor Georgia’s ante litem statutes control the path forward. The Federal Tort Claims Act does, and it sets up a hybrid system: Georgia law supplies the substance of the negligence claim, while federal procedure dictates how and when it must be pursued.

The Federal Waiver of Immunity

The United States, like the states, is immune from suit unless it consents. The Federal Tort Claims Act, found at 28 U.S.C. 1346(b) and 2671 through 2680, is that consent. It allows claims for personal injury or death caused by the negligent or wrongful act of a federal employee acting within the scope of employment, in circumstances where a private person would be liable under the law of the place where the act occurred. For an incident in Georgia, that means Georgia negligence principles, Georgia’s comparative fault rule, and Georgia’s damage categories define liability and recovery. Federal rules then govern the litigation itself. The result is a claim that is Georgia in substance and federal in procedure.

The Two-Year Administrative Claim

The FTCA’s defining feature is that a lawsuit cannot come first. Before any suit, a written administrative claim must be presented to the federal agency whose employee caused the harm, and it must be presented within two years of the date the claim accrues under 28 U.S.C. 2401(b). The standard vehicle is Standard Form 95, which calls for the facts of the incident, the employee or agency involved, the injuries, and a sum certain, a specific dollar amount of damages claimed. Missing the two-year presentation deadline bars the claim. This is the federal counterpart to Georgia’s ante litem notice, but the clock, the recipient, and the form are all different from the state and municipal systems.

Two features of the administrative claim trip up claimants who treat it as a formality. The first is the sum certain. The claim must state a definite total dollar figure, and that figure ordinarily caps any later lawsuit; damages exceeding it are barred unless newly discovered evidence or intervening facts justify the increase, so understating the amount can permanently limit the recovery. The second is presentment itself. The claim must actually reach the correct agency, the one whose employee caused the harm, and presenting it to the wrong office does not satisfy the requirement.

Two distinct rules are easy to conflate here, and they are not enforced the same way. Presentment under 28 U.S.C. 2675(a) is a mandatory prerequisite to suit: in McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court held that a lawsuit filed before the administrative claim is presented and resolved must be dismissed as premature, even when the claimant exhausts the agency process shortly afterward, so the suit cannot run ahead of the claim. The two-year time bar in 28 U.S.C. 2401(b) is a different matter. Although it remains a strict deadline that bars an untimely claim, the Supreme Court held in United States v. Wong, 575 U.S. 402 (2015), that this limitations period is not jurisdictional, because Congress did not clearly mark it as such, and it can therefore be equitably tolled in the narrow circumstances where tolling doctrine applies. The practical takeaway is that the requirement to present first is unforgiving, while the clock itself can yield in rare cases.

The dates make the sequence concrete. Suppose a claim accrues on March 1, 2026. The two-year presentment deadline under 28 U.S.C. 2401(b) falls on March 1, 2028, by which time the written administrative claim must reach the responsible agency. If the agency issues a written denial mailed on June 1, 2027, that mailing starts a separate six-month clock, giving until December 1, 2027 to file suit in federal district court, regardless of how much of the original two-year period remained. The two deadlines run on different triggers: accrual starts the first, and the mailing of a denial starts the second.

The Six-Month Wait and the Suit Deadline

Filing the administrative claim starts a second sequence of deadlines that catch the unwary.

Stage Time limit Source
Present administrative claim to the agency Within 2 years of accrual 28 U.S.C. 2401(b)
Agency investigates and responds Up to 6 months 28 U.S.C. 2675(a)
If no response after 6 months Claim may be deemed denied; suit allowed 28 U.S.C. 2675(a)
After written denial, file suit in federal court Within 6 months of mailing of denial 28 U.S.C. 2401(b)

The agency may pay, deny, or offer to settle. If it stays silent for six months, the claimant may treat the inaction as a denial and proceed. Once a written denial is mailed, a fresh six-month window opens to file suit in federal district court. This window, like the two-year presentment deadline, lives in 28 U.S.C. 2401(b), so under United States v. Wong, 575 U.S. 402 (2015), it is a firm deadline that is not jurisdictional and can be equitably tolled only in the rare situation that tolling doctrine recognizes.

Exceptions That Bar Claims

The waiver is hedged by exceptions in 28 U.S.C. 2680 that keep many claims out. The discretionary function exception bars claims grounded in conduct involving judgment, choice, or policy, mirroring the analysis under Georgia’s state tort statute. Most intentional torts by federal employees, such as assault and battery, are excluded, with a limited exception for certain conduct by federal law enforcement officers. The combatant activities exception covers military operations, and the foreign country exception bars claims arising abroad. Claims arising from the loss or miscarriage of mail are excepted, although motor vehicle collisions involving postal vehicles can proceed. Whether a particular exception forecloses a claim is often the central fight in an FTCA case.

FTCA Versus the Georgia Tort Claims Act

It is easy to assume that suing “the government” follows one path, but a claim against the United States and a claim against the State of Georgia run on separate tracks built on separate waivers of immunity. The Federal Tort Claims Act waives the sovereign immunity of the United States. The Georgia Tort Claims Act, found at OCGA 50-21-20 and following, waives the sovereign immunity of the State of Georgia and its agencies. Which sovereign employed the negligent actor decides which act applies, and the two differ on almost every procedural axis.

The deadlines and recipients diverge first. An FTCA claim requires a written administrative claim to the responsible federal agency within two years of accrual. A Georgia Tort Claims Act claim requires an ante litem notice under OCGA 50-21-26, in writing, within twelve months of the date the loss was or should have been discovered, delivered to the state’s Risk Management Division and to the agency involved. Both systems demand strict compliance, but the clocks, the forms, and the offices have nothing in common, and satisfying one does nothing to satisfy the other.

The structural rules diverge as well. The Georgia Tort Claims Act caps the state’s liability at $1 million for a single person and $3 million for a single occurrence, a ceiling the FTCA does not impose; federal recovery is limited instead by the sum certain stated in the administrative claim. Both regimes bar punitive damages against the sovereign. Forum differs too: an exhausted FTCA claim is tried to a federal judge without a jury, while a Georgia Tort Claims Act case proceeds in state court. Identifying the employer of the at-fault actor is therefore the threshold question, because a postal driver, a VA clinician, and a state-agency driver lead down genuinely different roads.

No Jury, No Punitive Damages, and the SB 68 Question

The FTCA carries structural limits that distinguish it from a private Georgia case. Under 28 U.S.C. 2674, the United States is liable like a private individual but is not subject to punitive damages, and 28 U.S.C. 2402 provides that FTCA actions are tried by the court without a jury. Because liability is measured by Georgia substantive law, the 2025 reform known as Senate Bill 68 is part of the backdrop for claims arising on or after April 21, 2025: its reasonable-value medical evidence provision shapes how medical specials are proven, and comparative fault under OCGA 51-12-33 applies, reducing recovery by the claimant’s share of fault and barring it at 50 percent or more. Several SB 68 mechanics that assume a jury, such as the trial bifurcation and anchoring rules, have little practical role in a bench-tried FTCA case. The 50% bar and apportionment doctrine is the canonical subject of a separate guide.

Frequently Asked Questions

Does someone injured by a federal employee in Georgia file in state court?
No. After exhausting the administrative claim, an FTCA lawsuit is filed in federal district court. Georgia law supplies the negligence standard, but federal court and federal procedure govern the case.

What is the deadline to start an FTCA claim?
A written administrative claim must reach the responsible federal agency within two years of accrual under 28 U.S.C. 2401(b). After a written denial, suit must be filed within six months of the denial’s mailing.

Can the United States be required to pay punitive damages under the FTCA?
No. The FTCA bars punitive damages against the United States under 28 U.S.C. 2674, even where similar conduct by a private defendant might support them.

Does Georgia’s comparative negligence rule apply to a federal claim arising in Georgia?
Yes. Because the FTCA borrows the substantive law of the place of the wrong, Georgia’s modified comparative negligence rule under OCGA 51-12-33 governs a claim arising in Georgia.

  • Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 through 2680
  • Administrative claim and suit deadlines, 28 U.S.C. 2401(b); presentment requirement, 28 U.S.C. 2675(a)
  • McNeil v. United States, 508 U.S. 106 (1993) (suit filed before administrative exhaustion must be dismissed as premature)
  • United States v. Wong, 575 U.S. 402 (2015) (the 28 U.S.C. 2401(b) time limits are not jurisdictional and are subject to equitable tolling)
  • No punitive damages and private-liability standard, 28 U.S.C. 2674; bench trial, 28 U.S.C. 2402
  • Exceptions including discretionary function, intentional torts, and mail, 28 U.S.C. 2680
  • Modified comparative negligence and apportionment, OCGA 51-12-33
  • Georgia Tort Claims Act, OCGA 50-21-20 et seq.; ante litem notice, OCGA 50-21-26 (12-month notice; $1 million per person / $3 million per occurrence liability limits)
  • Senate Bill 68 (2025 Georgia tort reform): reasonable-value medical evidence provision

Disclaimer

This article provides general information about how the Federal Tort Claims Act applies to claims arising in Georgia. It is not legal advice, does not create an attorney-client relationship, and may not reflect the most recent developments in federal or Georgia law. FTCA deadlines and exceptions are strict and the outcome of any matter depends on its specific facts. A person considering a claim against the United States should consult a licensed attorney experienced in FTCA practice about the particular situation.

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