Federal Discretionary Immunity

Making sense of the discretionary function
exception to the Federal Tort Claims Act
By Claire Choo

B
efore the Federal Tort Claims Act discretion involved is abused. (28 U.S.C. apply. With that in mind, there are various
(28 U.S.C. § 1346) was enacted in § 2680; Dalehite v. U.S. (1953) 346 U.S. avenues to defeat the discretionary func-
1946, the federal government en- 15, 36; U.S. v. Varig Airlines (1984) 467 tion exception.
joyed sovereign immunity under common U.S. 797, 819-20.) Commonly called the
law on the grounds that “the king could do “discretionary function exception” to the Prong One – Was there a
no wrong.” (See generally, 1 Blackstone, Federal Tort Claims Act, the exception judgment, choice, or decision?
Commentaries 238-39.) “Jurisdiction over is “[g]rounded in separation of powers
any suit against the Government requires concerns,” and “reflects Congress’s ‘wish The first prong looks at the governmental
a clear statement from the United States to prevent judicial “second-guessing” of conduct at issue and whether that conduct
waiving sovereign immunity, together legislative and administrative decisions was discretionary. Essentially, if the chal-
with a claim falling within the terms of the grounded in social, economic, and political lenged conduct was subject to a mandatory
waiver.” (U.S. v. White Mountain Apache policy through the medium of an action statute, policy, or regulation, the action is
Tribe (2003) 537 U.S. 465, 472 [inter- in tort.’” (Kennewick Irrigation Dist. v. not discretionary. Because the mandatory
nal citations omitted].) The Federal Tort U.S. (9th Cir. 1989) 880 F.2d 1018, 1029 statute, policy, or regulation prescribes
Claims Act is such a waiver – it waives [quoting U.S. v. Varig Airlines, supra, 467 specific action by the government em-
sovereign immunity for injury, property U.S. at 814].) ployee, the employee does not have any
damage, personal injury or death caused by When does the exception apply? The option but to follow the prescription and
the negligent or wrongful act or omission Supreme Court set forth a two-prong test no room is left for discretion. Thus, the
of a federal government employee while in Berkovitz v. U.S. that looks at: discretionary function exception does
acting within the scope of employment, 1. whether the challenged action was a not apply.
under circumstances where the United discretionary one – i.e., whether it was
States, if a private person, would be liable a matter of judgment or choice for the The Federal Tort Claims
in accordance with state law. acting employee; and
As sweeping as it sounds, make no mis- 2. whether the challenged action is of the
Act is a very limited
take – the Federal Tort Claims Act is a very type Congress meant to protect – i.e., waiver.
limited waiver. Its limitations are apparent whether the action involves a decision
when you see that the Federal Tort Claims susceptible to social, economic, or Berkovitz v. U.S. is an example defeating
Act does not apply when the claim is based political policy analysis. the discretionary function exception by the
upon the exercise or performance or the (Berkovitz v. U.S. (1988) 486 U.S. 531, first prong. In Berkovitz, the plaintiff sued
failure to exercise or perform a discretion- 536-537.) In the Ninth Circuit, the gov- the federal government on behalf of his
ary function or duty, whether or not the ernment bears the burden of proving both two-month-old son who contracted polio
prongs. (Prescott v. U.S. (9th Cir. 1992) after taking an oral polio vaccine. The
973 F.2d 696, 701-02; cf. Freeman v. U.S. Supreme Court found that if the National
(5th Cir. 2009) 556 F.3d 326, 334 [plaintiff Health Institute’s Division of Biologic
Claire Choo is an attorney bears burden of proving the discretion- Standards had licensed the pharmaceuti-
at Danko Meredith located
ary function exception does not apply].) cal company to manufacture the vaccine
in the San Francisco Bay
Area, where she represents However, in practice, the government only without first determining the vaccine’s
injured clients in catastrophic needs to make an initial showing that the compliance with the regulatory standards,
personal injuries, mass tort discretionary function exception applies the discretionary function exception did
actions, and aviation cases. and the burden shifts to plaintiff to show not apply because the licensing was in
www.dankolaw.com that the discretionary function does not contravention of the statute that required

20 FORUM January/February 2017 © Consumer Attorneys Of California
Identifying the mandatory
statute, policy, or
regulation that was
violated is the “silver
bullet” for defeating the
discretionary function
exception.

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© Wa

the Division to determine compliance be- that the conduct was the end product of a on social, economic, or political policy
fore issuing a license. (Berkovitz v. U.S., policy-driven analysis. (U.S. v. Gaubert because the determinations were based
supra, 486 U.S. at 544.) The court also (1991) 499 U.S. 315, 325; also Miller v. on objective safety principles. (Myers v.
found that although the regulatory scheme U.S. (9th Cir. 1998) 163 F.3d 591, 593 U.S., supra, 17 F.3d at 897.) Thus, the
regarding vaccine lots allowed the FDA to [the action or conduct “need not be actu- discretionary function exception did not
determine how to test lots, the FDA had a ally grounded in policy considerations, apply in Myers.
self-imposed policy of testing all vaccine but must be, by its nature, susceptible to Despite the overbreadth and confusion
lots for compliance with safety standards a policy analysis.”].) in the case law regarding the second prong,
and plaintiff’s allegation that the FDA Because of the extremely broad nature these are generally the types of cases in the
knowingly approved a non-complying lot of the second prong, this area of case law Ninth Circuit that fail the second prong
was sufficient to defeat the discretionary has produced some contrary results. For because the failures were not susceptible
function exception. (Id. at 548.) example, in two Federal Tort Claims Act to policy determinations:
Identifying the mandatory statute, pol- cases involving the decisions of inspec-
icy, or regulation that was violated is the tions from the Mine Safety and Health Failure to warn where there is no contrary
“silver bullet” for defeating the discretion- Administration, the Fourth and Sixth Cir- policy
ary function exception. cuits came to directly conflicting results. • Failure to warn of a known hazard was
(Cf., Bernaldes v. U.S. (4th Cir. 1996) 81 not policy-based, where there was no
Prong Two – What is the social, F.3d 428 and Myers v. U.S. (6th Cir. 1994) evidence of a contrary policy. (Oberson
economic, or political policy that 17 F.3d 890.) In both cases, mine workers v. U.S. Dept. of Agriculture, Forest Ser-
drives that decision? were killed in accidents due to the alleged vices (9th Cir. 2008) 514 F.3d 989, 998.
negligent inspection of the mines. Bernal- [Forest Services offered no evidence to
If there is no mandatory statute, policy, des alleged the inspector failed to discover show that the failure to post a warning
or regulation that was violated, the action safety violations with respect to railings was the result of a policy decision.])
is deemed discretionary. However, the and safety harnesses and inadequate light- • Failure to warn of existing diving haz-
analysis does not end there. Even if the ing. Myers alleged that inspectors failed ards in a national park where there was
challenged conduct involves some ele- to discover the alleged unsafe conditions a specific policy to post such warnings
ment of judgment, there is still a question that lead to an explosion. In Bernaldes, the and no other competing policy basis.
of whether that judgment is of the kind Fourth Circuit held that because the mining (Faber v. U.S. (9th Cir. 1995) 56 F.3d
that the discretionary function exception inspectors had discretion under the regula- 1122, 1125-27.) “[T]he use of the dis-
was designed to shield. The discretionary tions to determine whether a mine com- cretionary function exception must be
function exception protects only gov- plies with the regulations, the discretionary limited to those unusual situations where
ernmental actions and decisions based function exception applied. (Bernaldes v. the government was required to engage
on considerations of public policy, i.e. U.S., supra, 81 F.3d at 429.) The Fourth in broad, policy-making activities or to
whether the action involves a decision Circuit determined that because the em- consider unique social, economic, and
grounded in social, economic, or political ployee had to make a decision about the political circumstances in the course of
policy analysis. (Berkovitz v. U.S., supra, compliance of the mine, that decision was making judgments related to safety.”
486 U.S. at 537.) The action need only be presumptively grounded in policy. (Id.) In (Id. at 1125.)
“susceptible to policy analysis” regarding Myers, the Sixth Circuit acknowledged • Failure to warn of dangerous hot coals
social, economic or political concerns; the that while mine inspectors had discre- was a departure of established safety
government is not required to show that a tion in making safety determinations, policies. (Summers v. U.S. (9th Cir.
policy analysis was actually undertaken or those determinations were not grounded 1990) 905 F.2d 1212, 1215 [there was

© Consumer Attorneys Of California January/February 2017 FORUM 21
no evidence that NPS’s failure to post the discretionary function exception exception applies, issues of negligence
warnings was the result of a decision because the judgment is not one rooted are “irrelevant to the discretionary func-
reflecting competing policy consider- in social, economic, or political policy. tion inquiry.” (Kennewick Irrigation Dist.
ations].) • The government’s design of an irrigation v. U.S., supra, at 1029.) The choice or
canal is protected by the discretionary decision made by the government actor
Failure to act despite known or obvious function exception because design de- may have been obviously negligent but
hazard cisions consider the construction costs the negligent conduct is protected by the
• Failure to safely maintain military base and the public’s ability to pay for those discretionary function exception. Again,
parking lot of unplowed ice did not have costs. (Kennewick Irrigation Dist. v. this is grounded in the idea that the judi-
policy implications. (Bolt v. U.S. (9th U.S., supra, 880 F.2d at 1028.) However, ciary should not be “second-guessing” the
Cir. 2007) 509 F.3d 1028, 1033-35.) the government’s failure to remove un- decisions of the legislative and executive
• Failure to maintain irrigation system suitable materials during construction branches of government. Thus, the excep-
where government was aware that rou- of the canal were not based on policy tion shields the government from liability
tine maintenance was not being con- judgment but based on technical, sci- even if the discretion is abused.
ducted. (O’Toole v. U.S. (9th Cir. 2002) entific, engineering considerations and Another consideration is that although
295 F.3d 1029, 1036.) thus, these decisions were not shielded the discretionary function exception looks
• Ignoring reports and complaints about by the discretionary function exception. like an affirmative defense, it is, in fact, a
unsafe conditions in the meat depart- (Id. at 1031.) jurisdictional question. The federal court
ment in a naval commissary had no does not have jurisdiction over a Federal
policy implications. (Whisnant v. U.S. Procedural considerations and Tort Claims Act case if the alleged con-
(9th Cir. 2005) 400 F.3d 1177, 1185.) practice tips duct falls within the discretionary func-
tion exception. (GATX/Airlog Co v. U.S.
Decisions requiring the use of objective There are a few other things that plain- (9th Cir. 2002) 286 F.3d 1168, 1173.) This
standards tiffs should be aware of in navigating means the issue can be raised at any time.
• The choice of how much dynamite to the discretionary function exception to So the issue can be brought very early
use in the project is governed by ob- the Federal Tort Claims Act. Once it is under Federal Rule of Civil Procedure
jective standards and not shielded by determined that the discretionary function 12(b)(1) as a motion to dismiss, even
when there are facts in dispute. The dis-
puted facts can be resolved by the court.
(St. Clair v. City of Chico (9th Cir. 1989)
880 F.2d 199, 201.)
Essentially, to defeat the discretionary
function exception to the Federal Tort
Claims Act, you should find a mandatory
statute, policy, or regulation that governs
the conduct at issue. Discovery seeking
information on all applicable federal poli-
cies, guidelines, regulations, directives,
and rules should be conducted early on
to fend off the Rule 12(b)(1) motion to
dismiss. If there is no mandatory stat-
ute, policy, or regulation, the allegations
should be framed in such a way that the
decision or choice made leading to the
offending conduct is not susceptible to a
policy analysis. This can be done by: (1)
arguing that in the choice between the safe
option and the chosen option, there was
no contrary policy that precluded the gov-
ernment from choosing the safer option;
(2) there was a known and obvious hazard
in the face of which the government had
the power to act on and no policy implica-
tions for not acting can be demonstrated;
or (3) the decision was made or should
have been made according to some other
objective standard, such as a technical,
scientific, or engineering standard. n

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