When you file a claim under the Federal Tort Claims Act (FTCA) for an injury caused by a federal employee – whether it’s malpractice at a VA hospital, a postal truck accident, or a slip-and-fall on federal property – you’re taking on the U.S. government. That can feel intimidating. Federal agencies and their lawyers often deploy powerful defenses to deny responsibility or reduce what they have to pay. It’s not that they don’t care; it’s that paying claims costs money, and the law gives the government special protections. Facing these defenses can be frustrating and overwhelming for injured people. But there’s good news: with a skilled FTCA attorney on your side, you can overcome these challenges and force the government to compensate you fairly. In this article, we’ll break down the most common defenses the government uses to dodge or minimize FTCA claims – and explain how our experienced attorneys counter each one. We’ll share real-world examples (VA medical errors, USPS vehicle crashes, unsafe conditions at federal sites) to show how these defenses come up in everyday cases. Our goal is to reassure you that even though the government has many tactics to avoid liability, there are effective strategies to beat them and win the justice you deserve.

(Remember: every FTCA case is unique. If you have questions about your specific situation, don’t hesitate to reach out for a free consultation – we’re here to help.)

Missed Deadlines and Procedural Traps (Timing Is Everything)

The Defense: The FTCA has strict deadlines and procedural rules – and the government isn’t shy about using them to get cases thrown out. Before you can sue, you must file an administrative claim (usually using Form SF-95) with the correct federal agency within two years of the injury. If you miss that 2-year statute of limitations, your claim is barred forever. Even after filing the claim, if the agency denies it (or six months pass with no decision), you have only six months to file a lawsuit in federal court. These timelines are unforgiving. For example, we’ve seen a veteran injured by VA malpractice who was focused on recovery and unaware of the FTCA deadline – by the time he filed, it was too late, and the VA promptly denied the claim. Procedural mistakes can also sink a case: if you sue the wrong defendant (you must sue the United States, not the agency or employee), file in the wrong court, or even leave out key information (like a specific “sum certain” dollar amount on your claim form), the government will move to dismiss your case on technical grounds. In short, the federal attorneys will seize any procedural error to deny your claim without ever addressing the merits. It’s not personal – it’s how the system is set up.

How We Overcome It: An experienced FTCA attorney’s first job is to make sure the government has no procedural ammo to use against you. At National Security Law Firm (NSLF), we treat deadlines and filing requirements with absolute precision. Our FTCA lawyers file claims well before the two-year deadline, with all required details and documentation, so the agency can’t toss your claim for being late or incomplete. We ensure the claim is sent to the correct agency and that we sue in the proper federal court within the six-month window if needed. We’ve developed detailed checklists and “clockwatching” systems to track every date – we won’t let your rights expire due to red tape. If you do come to us late, we investigate whether any exception (like equitable tolling) might apply, but we’ll always be honest about the risks. By handling the paperwork correctly from day one, we deny the government any chance to get your case thrown out on a technicality. This strong, detail-oriented approach means we fight about what really matters – your injuries and the government’s negligence – instead of getting tripped up by procedural traps.

The Discretionary Function Exception (“Policy Decision” Immunity)

The Defense: One of the government’s favorite shields in FTCA cases is the “discretionary function exception.” This is a legal exception that says the United States is not liable for actions of its employees that involve judgment or policy choices. In plain English, if your injury stems from a government decision that required weighing social, economic, or political considerations, the feds might claim they’re immune because it was a permitted policy decision. This defense is notoriously common and complex – in fact, it’s “one of the most complex and frequently litigated aspects of the FTCA”. How does it come up in real life? Imagine you slipped on a trail in a national park because there were no warning signs or railings. If the Park Service had to balance safety vs. preserving natural scenery when deciding not to install a railing, they’ll argue that was a discretionary (policy-based) decision – and therefore, they can’t be sued for the resulting injuries. Another example: a military base decides how to allocate security staff, and an intruder injures someone on base due to a shortage of guards. The government might claim staffing levels were a budget/policy judgment. In these scenarios, the government says, “Even if someone got hurt, we made a policy call, so you can’t hold us responsible.” This defense can be a show-stopper if it sticks.

However, not every act is protected by this exception. There’s a crucial distinction: if a federal employee violates a specific mandatory rule or standard, then they didn’t have discretion – and the exception doesn’t apply. For instance, if a Postal Service driver ran a red light and hit your car, that’s not a protected policy decision – it’s straightforward negligence in violation of a traffic law. Likewise, if a federal building had a spill on the floor and safety protocols required cleaning it up, employees can’t ignore it under the guise of “discretion.” The government might try to stretch the discretionary function defense even to situations of clear carelessness, because it’s a silver bullet if they win on it. We’ve seen agencies initially claim that virtually anything was a policy choice – even maintenance lapses – hoping the court will buy it. It’s an intimidating defense, because if the judge agrees an act is “discretionary,” your case can be dismissed no matter how badly you were hurt.

How We Overcome It: Winning against the discretionary function defense requires digging into the facts and the rules. Our FTCA attorneys at NSLF meticulously investigate what caused your injury and what rules applied to the situation. We look for any laws, regulations, or internal policies that the federal employees should have followed. If we find a specific safety rule or mandatory procedure that was ignored, we can prove the employee had no discretion to ignore it – knocking out the government’s immunity claim. In cases involving broader policy decisions, we push back by showing the limits of that policy. We might argue that the conduct wasn’t a high-level policy planning issue at all, but rather ordinary negligence at the ground level. Our team’s experience is crucial here – as former federal attorneys and military JAG officers, we know how agencies operate and where to find the “mandatory” directives buried in bureaucracy. We also use expert witnesses (for example, highway safety experts in a road design case) to testify that certain safety measures were standard and not subject to policy whim. By combining deep legal knowledge with thorough investigation, we often turn the tables: what the government calls “discretion,” we reveal as negligence. The result? Your case stays alive, and we move on to proving fault and damages.

The Independent Contractor Loophole (“It Wasn’t Our Employee”)

The Defense: The FTCA only makes the U.S. liable for acts of its own federal employees – not independent contractors. The government loves to point the finger at a contractor to escape liability. If the person who hurt you isn’t technically a federal employee, the United States will argue it cannot be sued, period. For example, many VA hospitals use contract physicians or outside specialists. If a veteran is harmed by medical malpractice at a VA facility, the VA might later claim, “That doctor wasn’t a VA employee – they were an independent contractor – so we’re not responsible.” Similarly, if you trip over a hazard at a federal building and the maintenance or cleaning was outsourced to a private company, the agency will argue the contractor’s negligence isn’t government negligence. Legally, “the government is generally not liable for the negligence of independent contractors it hires.” If a private company was doing work for the feds (construction, maintenance, security, etc.) and caused the harm, you typically have to pursue that company instead of the United States. This contractor defense catches many people off guard. Real-world example: A postal truck hits your car – you assume the driver is a USPS employee. But in some rural areas, the Postal Service uses contract delivery drivers. If the driver wasn’t on the federal payroll, the government will deny your claim and tell you to chase the contractor on your own. Or consider a national park that contracts out its trail maintenance: if you’re injured because a trail was negligently maintained, the Park Service might say the contractor failed in their duties, not any park ranger. To an injured person, these distinctions are infuriating – you were on federal property or dealing with what seemed to be a federal worker in a federal uniform. But the government will swiftly invoke this loophole to avoid paying, if it applies.

How We Overcome It: Navigating the contractor defense starts with uncovering the truth about who was responsible. Our FTCA attorneys dig into contracts, employment records, and agency agreements to determine who was actually controlling and supervising the work. In some cases, we find that the so-called “contractor” was being directed day-to-day by federal staff – which can support arguing that the government still should be accountable (courts look at the level of control in some contractor situations). More often, if the person truly was an independent contractor, we’ll redirect our strategy to ensure you’re not left without recourse. This might mean filing a claim against the private company or contractor in state court. We know that’s not what our clients initially envision – you wanted to sue the VA or USPS – but part of being a skilled FTCA lawyer is identifying all possible defendants. For example, in a VA hospital case where a contract surgeon was responsible, we pursued the contractor’s employer for malpractice in state court while also examining whether any VA employees contributed to the harm (like negligent oversight by federal staff). We’ll pursue every angle to make sure you get compensated – if not directly under the FTCA, then via the responsible parties. And importantly, we know in advance how to spot this issue. When you come to NSLF, we quickly determine if your case involves any contractors. By doing so, we prevent months of lost time – we won’t file an FTCA claim that’s doomed by the contractor exception. Instead, we craft a game plan to get justice either from the U.S. or the contractor (or both). This proactive, informed approach cuts off the government’s favorite escape route. Bottom line: we hold the correct party accountable, and you get the recovery you deserve.

The Feres Doctrine (Bar on Active-Duty Military Claims)

The Defense: If you or a family member is active-duty military, the government has a unique defense that can completely bar an FTCA claim: the Feres doctrine. Under Feres (named after a Supreme Court case), active-duty service members cannot sue the government for injuries that are “incident to service.” In simple terms, if a service member is harmed due to negligence while doing military duties or on a military base, they usually cannot file an FTCA lawsuit. This can feel terribly unfair – for instance, if an active-duty soldier is the victim of clear medical malpractice at a military hospital, any civilian would have a claim, but the soldier cannot sue due to Feres. The government will invoke this doctrine to automatically dismiss such cases. Real example: Suppose an active-duty Airman is injured in a car accident on base caused by a careless federal employee, or a Navy corpsman commits surgical errors on an active-duty patient. No matter how severe the injury or obvious the negligence, the servicemember’s lawsuit will likely be thrown out. The rationale (whether we agree or not) is that Congress chose not to allow military personnel to sue the government as part of the compensation system (they receive other benefits like disability, but not tort damages). The FTCA explicitly does not cover claims by active-duty military for service-related injuries. The Feres doctrine is a harsh rule and one the government uses often to deny claims from our men and women in uniform.

How We Overcome It: Honesty and creative solutions are crucial when Feres is in play. First, if you are active-duty and injured, we’ll carefully analyze whether your injury truly was “incident to service.” Sometimes the lines blur – for example, if you were on leave or injured by a purely recreational activity on base, Feres might not apply. Our attorneys will scour the facts to see if the government is overextending Feres. If there’s any argument that your claim falls outside the doctrine, we will fiercely advocate that and back it up with legal precedent. (For instance, injuries to service members that occur as passengers in a car off-base, or due to egregious medical errors not related to military duty, have sometimes been allowed – these are rare, but we know to look.) If Feres clearly does bar the claim, we’ll be upfront with you about it – compassionately and pragmatically. This doctrine is essentially ironclad in court, and no lawyer can undo it. However, that’s not the end of the road. Our firm will explore alternative paths to compensation. In recent years, for example, a new law allows service members to file administrative claims for medical malpractice within the military (though not full court lawsuits). We can help clients navigate that internal process to obtain some compensation from the Department of Defense for medical injuries. We’ll also look at benefits you’re entitled to (like increased VA disability ratings, military disability retirement, or other remedies) and guide you through those. If the injured person is a military family member or veteran (not on active duty), Feres doesn’t apply – you can sue under the FTCA, and we will proceed normally. The key is, we won’t give you false hope, but we also won’t leave any stone unturned. Our mission is to take care of those who serve our country. If the law unfairly blocks a lawsuit, we shift to whatever means can help secure your future – whether through administrative claims, appeals to Congress for relief (in truly exceptional cases), or ensuring you maximize other benefits. You’re not alone in this; we’ll fight for you even when the law ties one hand behind our backs.

“Blaming the Victim” – Comparative Negligence Defenses

The Defense: Just like in any injury case, the government can try to blame you, the victim, to avoid or reduce paying. Under the FTCA, the United States can use any defense that a private person could use under the state’s law, including comparative or contributory negligence. This means if they can show you were partially at fault for your own injury, your compensation could be reduced or even eliminated (depending on the state’s rules). Federal agencies and their attorneys frequently raise this defense to minimize payouts. For example, in a postal truck accident case, the USPS might argue that you were speeding or you failed to yield, so the postal driver isn’t fully to blame. We handled a case where a mail truck hit a pedestrian in a crosswalk – the government’s lawyers argued the pedestrian was distracted by a phone and thus partly responsible. In a slip-and-fall at a federal building or VA hospital, the agency might claim the hazard was “open and obvious” (you should have seen it) or that you were wearing inappropriate footwear. In a VA medical malpractice scenario, the VA could assert that the patient didn’t follow medical advice, contributing to the harm. These arguments are designed to either deny the claim outright (if your share of fault is deemed too high) or to severely cut down the damages. Some states bar recovery if you are even 1% or 50% at fault (contributory negligence rules), giving the government a powerful incentive to shift blame. It can feel like adding insult to injury – you sought justice because a federal employee hurt you, and now the government is basically saying you were the careless one. Unfortunately, this is standard procedure in litigation: the U.S. will rarely admit full fault without a fight.

How We Overcome It: Countering “blame the victim” tactics requires a mix of solid evidence, state-law savvy, and effective advocacy. Our first step is to thoroughly investigate the incident so we can lock down exactly what happened. We gather accident reports, video footage, witness statements – anything to establish the truth and dispel false narratives. In a VA hospital fall case, we might work with safety experts to show that the hazard would not have been noticeable to anyone not specifically looking for it (rebutting the “open and obvious” claim). We also leverage medical experts in malpractice cases to testify that even if a patient missed a follow-up appointment or had health risk factors, the primary cause of injury was the provider’s negligence – not the patient’s conduct. Knowing the law in your state is critical as well. Our FTCA attorneys are well-versed in the differing negligence rules nationwide. If you’re in a comparative negligence state (where you can still recover damages minus your percentage of fault), we focus on keeping your share of blame as low as possible through evidence and testimony. If you’re in a contributory negligence state (where any fault on your part could bar recovery), we fight tooth-and-nail to prove you did nothing wrong whatsoever. We anticipate these blame tactics from day one – recall that our team includes former government litigators, so we know the playbook. By preparing early, we build a case that emphasizes the government’s fault and humanizes you as a cautious, innocent victim. And when it comes time for negotiations or trial, we turn the tables: if the government wants to play the blame game, we make sure the judge sees it for what it is – an attempt to dodge responsibility – and we highlight the concrete proof showing the United States was actually the one at fault. The result is a stronger position to get you full and fair compensation. We refuse to let them victimize you twice.

Denying Negligence or Minimizing Your Injuries

The Defense: Sometimes the simplest defense is the most frustrating: the government just denies that it did anything wrong or argues that your injuries aren’t as severe as you claim. Unlike the exceptions and tactics above (which are legal loopholes or blame-shifting), this defense is essentially “Prove it.” The agency might say, “We don’t believe our doctor actually messed up,” or “Our investigation shows the federal employee wasn’t negligent,” or “Yes, something happened, but you’re exaggerating your injuries.” In a VA malpractice case, even if the VA admits an error, they may contend it didn’t cause the patient’s complications (for example, “the patient had a complex condition that would have led to these outcomes anyway”). In a car crash with a federal vehicle, the government might accept fault for the fender-bender but insist that your whiplash or PTSD isn’t real or is mostly due to prior injuries. They often bring in their own medical experts to downplay your suffering. Additionally, the FTCA does not allow punitive damages and limits some recoveries (you can’t usually get more money than you asked for in your administrative claim), so the government knows it can chip away at your claim’s value by contesting every category of damage. This “deny and minimize” approach is common in litigation – it forces you to prove every aspect of your case with evidence. The burden is on you to show not only that the federal employee was negligent, but also that this negligence directly caused your harm and that your damages (medical bills, lost wages, pain and suffering, etc.) are as high as you say. It’s a lot for an injured person to gather on their own, and the government counts on that. They may offer a token settlement far below what’s fair, hoping you’ll take it rather than fight for more proof.

How We Overcome It: This is where having a skilled FTCA attorney in your corner truly makes a life-changing difference. At NSLF, when the government denies fault or downplays your injuries, we build an ironclad case to prove them wrong. We collaborate with top-notch experts – from medical specialists to accident reconstructionists – who can provide objective, professional opinions supporting your claim. If the VA says “your injuries were pre-existing,” we’ll have a respected doctor review your records to show how the VA’s negligence aggravated an existing condition or caused entirely new harm. If a federal agency claims their employee followed proper procedures, we take depositions (sworn interviews) of witnesses and even the employees involved to expose any lapses or errors. We leave no stone unturned: every bit of evidence, from emails and maintenance logs to surveillance footage and black box data, will be hunted down by our team. This comprehensive approach often uncovers “smoking gun” evidence – like an internal report admitting fault or a pattern of similar incidents – that blows the government’s denial out of the water. On the damages side, we compile detailed documentation of your losses. We work with your doctors to get thorough reports linking the incident to your medical conditions. We bring in economists or vocational experts if needed to calculate your lost earning capacity. By presenting a mountain of credible evidence and expert testimony, we make it impossible for the government to casually dismiss your case. And when they see we’re prepared to prove every dollar and every fact to a judge, they’re far more likely to negotiate a fair settlement rather than risk a trial. Throughout this process, we also keep you involved – we know how important it is to tell your story. We often invite our clients to share impact statements that we use (strategically) to put a human face on the case. Your pain is real, your story is powerful, and we make sure the government hears it loud and clear. By methodically dismantling the “deny and minimize” defense, we maximize the settlement or judgment you receive. We won’t let the government trivialize what you’ve been through.

Why Choose National Security Law Firm to Handle Your FTCA Case?

At National Security Law Firm, we don’t just handle FTCA cases – we fight to win them, and we have the track record to prove it. Taking on the U.S. government is no small task, but it’s exactly what we do every day. Our team is uniquely qualified: our attorneys include former federal prosecutors, military JAG officers, and government litigators who have been on the other side of these cases. We know the government’s playbook inside-out – and that insider knowledge helps us beat them at their own game. We pair that experience with genuine compassion for our clients. We understand that when you’re fighting the VA, USPS, or any federal agency, you might feel like a small David against a giant Goliath. Our mission is to level the playing field and give you the firepower to win.

Families across the country choose NSLF because:

  • Proven Results & Satisfied Clients: We have achieved significant settlements and judgments for veterans, military families, and civilians in FTCA cases. Our clients have given us ⭐ 4.9-star ratings in Google reviews, reflecting the care and results we deliver. We encourage you to read their stories and see how we’ve helped people just like you.

  • Inside Knowledge of Government Tactics: Our lawyers’ federal service backgrounds mean we anticipate the government’s defenses and counter-strategies before they even raise them. From discretionary function arguments to medical defense experts, we’re ready to rebut it all. This often leads to quicker and larger settlements, because the government realizes we’ve got them cornered.

  • Nationwide FTCA Experience: We handle FTCA claims all over the country – from a Postal truck accident in California to a VA hospital malpractice case in Ohio to a National Park injury in Colorado. We’re based in Washington, D.C., the hub of federal litigation, and can file suit in any federal court needed. No matter where you are, we can help.

  • Resources to Fight Big Cases: Going up against the U.S. government can be a war of attrition – but we come prepared. NSLF invests in the best experts, investigators, and technology to build your case. We treat every case as if it’s going to trial, and the U.S. Attorneys know we mean business. We won’t be outspent or outmaneuvered, because we’ve structured our firm to take on the largest adversary there is.

  • Compassionate, Client-Centered Service: You’re not just a case number to us. We take the time to listen to your story and truly understand how the injury has affected your life. Our attorneys keep you informed at every step and are always a phone call away to answer questions. We handle the legal battle so you can focus on healing. It’s a partnership – and we never forget that this is your life and justice we’re fighting for.

  • Affordable Representation: Federal cases don’t have to break the bank. We work on a contingency fee for FTCA claims (capped by law at 20–25% depending on stage), so you pay nothing upfront.

  • “It’s Our Turn to Fight for You” – and we mean that. Our firm slogan isn’t just words; it’s how we approach every single case. You served your country or trusted your government for services, and if you were hurt due to that trust, we take it personally. We consider it our turn to serve you, by fighting relentlessly for the justice and compensation you deserve. We do not quit until we’ve exhausted every avenue to win you the maximum recovery. Every dollar matters when the government causes you harm, and we won’t leave money on the table.

National Security Law Firm: It’s Our Turn to Fight for You.

Ready to Take the Next Step? Let’s Talk.

If you or a loved one has been injured due to the negligence of a federal agency or employee, don’t face the government alone. The FTCA process is full of pitfalls and defenses (like those we’ve explained above) that the U.S. will use to protect itself – but you have rights, and you can win with the right help. The sooner you get an experienced FTCA attorney involved, the stronger your case will be. Our team at NSLF is ready to review your situation, answer your questions, and outline a clear plan to overcome any government defenses and pursue the maximum compensation for you.

☎️ Call us at 202-600-4996 or book your free consultation online. There’s no cost or obligation to speak with us. We’ll listen to your story, evaluate the facts, and give you an honest assessment of your options. If we take your case, you won’t pay a dime unless we win. We take the burden off your shoulders and put it squarely on ours – where it belongs.

For more information about FTCA claims and what to expect, feel free to explore our FTCA Resource Center, which offers in-depth guides, FAQs, and real-world examples of successful cases. Knowledge is power – and we want you to feel empowered every step of the way.

You’ve been through enough. Now let us fight for the justice and financial recovery you need to move forward. Together, we’ll hold the government accountable and get you the outcome you deserve.

National Security Law Firm: It’s Our Turn to Fight for You.