Suing Uncle Sam!

In the second of our weekly posts on topics from our 2026 Aviation Roundtable, we present the materials from our panel on Suing the United States for FAA Negligence.

When negligence by the Federal Aviation Administration (FAA) contributes to an aviation accident, the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), may provide a legal avenue for bringing a claim against the United States. Enacted in 1946, the FTCA represents a limited waiver of the federal government’s traditional sovereign immunity and permits certain claims based on the negligent or wrongful acts of federal employees acting within the scope of their employment.

However, there are traps for the unwary who may try to seek recovery, as an FTCA claim is subject to significant substantive and procedural requirements. A claimant generally must establish negligence under applicable state law and comply with strict administrative requirements, including timely presenting an administrative claim to the appropriate federal agency, typically using Standard Form 95. The claim generally must be presented within two years of accrual, and the agency generally has six months to act before the claimant may proceed to federal court. Claims under the FTCA are decided by a judge rather than a jury, and jurisdiction, venue, applicable law, and the types of damages that may be recovered are governed by federal statutes and the applicable state law.

FAA-related negligence claims can arise from the operational responsibilities of the nation’s air traffic control system. Air traffic controllers are required to follow established procedures, including those contained in FAA Order 7110.65, which governs air traffic control operations. Allegations may involve violations of required procedures, errors in communications, incorrect or incomplete clearances, inadequate separation of aircraft, or other operational mistakes. The critical legal question is often whether the challenged conduct was an operational failure that can support an FTCA negligence claim or instead involves a discretionary government decision protected from liability. This distinction can be particularly important in cases involving staffing, controller training, fatigue and stress, equipment limitations, system capacity, modernization, and air traffic control outages or overloads.

The discretionary-function exception, 28 U.S.C. § 2680(a), is one of the most significant limitations on an FTCA claim against the FAA. The exception generally protects governmental conduct involving an element of judgment or choice when that judgment is susceptible to being grounded in social, economic, or political policy considerations. Its purpose is to prevent courts from second-guessing legitimate government policy decisions and to protect the government from liability that could interfere with efficient governmental operations. Thus, decisions concerning the allocation of resources, staffing levels, safety-inspection priorities, modernization strategies, or other broad policy matters may receive protection. In the air traffic control context, however, the analysis can be fact-specific: a high-level decision about how to allocate limited resources may be discretionary, while a controller’s failure to follow a mandatory operational procedure may be treated differently if the employee had no legitimate discretion to disregard the requirement.

For those of you seeking a summary of these issues, the materials from the roundtable can be found HERE.