The Assistant United States Attorney (“AUSA”) assigned to a tort suit assumes responsibility for the robust, professional defense of the suit unless the suit is one assigned to be handled directly by a component of the Torts Branch. The initial letter from the Torts Branch will request the agency to forward a litigation report to the AUSA, although the AUSA in delegated cases will ordinarily send the agency a request for a litigation report and remind it to institute or maintain an appropriate litigation hold. The litigation report will be the starting point for development of the facts and legal position to be taken in the litigation. However, the AUSA is responsible for ensuring that each reasonable legal and factual defense is pursued regardless of whether the agency litigation report identifies the defense. The Torts Branch Monographs and, particularly the FTCA Staff's Monograph "Checklist of FTCA Defenses" provide assistance.

The AUSA must obtain approval from the appropriate FTCA Staff attorney prior to raising the "discretionary function exception" defense in any case. The AUSA may also desire to consult with the Branch when a difficult issue pertaining to any of the exceptions or exclusions to the Federal Tort Claims Act arises. If the case is designated as a monitored case, the AUSA may seek assistance from the Torts Branch attorney or reviewer designated in the initial letter from the Torts Branch to the agency requesting a litigation report. If the case is designated as a delegated case, the AUSA should contact the Torts Branch Staff attorney listed in the internal compendium of “Expertise in the Civil Division” as the assigned expert on the subject matter at issue. If the compendium does not list a Staff attorney for the subject matter, the author of the appropriate Monograph, if any, should be contacted or an inquiry may be made by calling the responsible Director's office.

The FTCA is the exclusive remedy for common law torts committed by federal employees acting within the scope of employment. United States Attorneys are authorized to make the certification required by law (28 U.S.C. § 2679(d)(1)) in order to substitute the United States for a federal employee against whom a common law tort suit is brought. See JM 4-5.630; 28 C.F.R. § 15.4. Certification and removal in cases arising under the Federally Supported Health Centers Assistance Act should be done exclusively under the provisions of 42 U.S.C. §233.

[updated April 2018]