Protecting Discretion: Judicial Interpretation of the Discretionary Function Exception to the Federal Tort Claims Act

In 1996 the Federal Tort Claims Act turns fifty. Few statutes reach the half-century mark only slightly amended and with their primary purposes still intact. The Federal Tort Claims Act is one such rare statute. The purpose of the Federal Tort Claims Act (FTCA) was to make the United States liable for the torts of its employees committed in the scope of their employment. Today that sounds commonplace. Half a century ago, however, a considerable legislative effort was needed to overturn the doctrine of sovereign immunity that forbade the recovery of tort damages against the United States. Congress\u27s rejecting sovereign immunity did not mean making the United States liable for every allegedly tortious act. The crucial determination that remained was what government harms would still be shielded from tort liability. The primary statutory answer to that question was the discretionary function exception, codified at 28 U.S.C. section 2680(a). The pertinent portion of section 2680(a) provides that the United States is not liable for any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Few other sections of the FTCA aid in the definition of “discretionary functions.” The legislative history, spread over several sessions of Congress, gives little additional guidance. In effect Congress invited the federal agencies (who were authorized to settle claims against them administratively) and the federal courts (who were tasked with deciding the claims that could not be settled) to define “discretionary functions.” And so they have. This Article continues a series of this Author\u27s studies of the judicial interpretation of the discretionary function exception. The initial study in 1977 examined lower federal court decisions in search of guidance. At that time only a single United States Supreme Court case, Dalehite v. United States, provided guidance. Dalehite was a unique case on its facts. The guidance for other cases from the opinion was somewhat muddled. By 1977 Dalehite was nearly a quarter-century old. The two subsequent articles in 1985 and 1989 drew on new Supreme Court discretionary function cases. Between 1984 and 1991, the Supreme Court issued near-unanimous decisions in three cases that squarely raised the application of the discretionary function exception. A lack of Supreme Court law changed to a relative wealth of it. This Article assesses discretionary function law at the FTCA\u27s half-century mark. This Article reviews the Supreme Court precedents, and examines all of the over 100 reported federal court of appeals and district court discretionary function cases since the crucial Supreme Court decision in Berkovitz v. United States. in 1988. An analysis of that jurisprudence gives a good sense of the scope of United States tort liability as of 1995