Key Takeaways

  • The discretionary function exception under the Federal Tort Claims Act (FTCA) shields the government from liability when employees exercise judgment tied to social, economic, or political policy.
  • Courts apply a two-step test: first, whether the action involved judgment or choice; second, whether that judgment was grounded in policy considerations.
  • Routine negligence or operational errors (like failing to warn of known hazards) usually fall outside this exception and may lead to liability.
  • The exception ensures courts do not second-guess policy decisions made by agencies, but it has been controversial because it can limit access to remedies for injured parties.
  • Understanding discretionary function meaning requires examining both statutory interpretation and case law, since outcomes depend heavily on judicial application.

The Federal Torts Claims Act is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a 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.' 28 U.S.C. Sec. 2680(a).

Determining Discretionary Function Exception

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 (1988). See Kennewick Irrigation District v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 (1991) (quotation omitted). '[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.' Berkovitz, at 535. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, at 322-23. Thus, the discretionary function exception protects only broad policy-based actions or decisions by government employees.

A 'decision not to warn of a specific, known hazard for which the acting agency is responsible is not the kind of broader social, economic or political policy decision that the discretionary function exception is intended to protect.' Sutton, 26 F.3d at 910

Examples of Discretionary vs. Non-Discretionary Acts

Courts often distinguish between policy-driven decisions and routine operational tasks when applying the discretionary function exception.

  • Discretionary acts include high-level choices such as military strategy, regulatory enforcement, or decisions about allocating limited resources. These actions involve balancing competing social or political concerns, making them the type Congress sought to protect.
  • Non-discretionary acts are more routine, such as failing to repair equipment, neglecting safety inspections, or not following mandatory regulations. When an employee ignores a clearly prescribed directive, the exception does not apply.

For example, in Varig Airlines, the Supreme Court held that regulatory decisions regarding aircraft safety inspections were protected. By contrast, when agencies fail to carry out ministerial duties—like warning of a specific hazard—the exception does not shield them.

Government Immunity

The discretionary function exception restores the government's immunity in situations where its employees are carrying out governmental or 'regulatory' duties. See 138 Cong. Rec. S13982-01, *S14010 (daily ed. Sept. 18, 1992). Accordingly, if the government can prove that the actions taken by its employees consisted of the unique functions and responsibilities of the government, then the government cannot be held liable under the FTCA even if a private individual would be held liable. See H.R. Rep. No. 1015, 101st Cong. 2nd Sess. 134 (1991)('The purpose of the discretionary function exception is to protect the ability of the government to proceed with decisionmaking in carrying out its unique and vital functions without `second-guessing' by the courts as to the appropriateness of its policy choices'); U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). However, in cases where the government is alleged to have committed negligence in the performance of a function such as that performed by a private citizen, rather than in the fulfillment of a broad policy-making duty, the government is subject to suit.

This same exception can also apply to various other federal and state causes of action such as civil rights and discrimination claims. However, it may not be a clear factual situation and is often the subject of intensive litigation and motion practice.

Policy Justifications and Criticisms

The discretionary function exception rests on the principle that courts should not intrude into the policy-making domain of the executive branch. It prevents lawsuits that might second-guess regulatory priorities, military tactics, or economic trade-offs inherent in government decisions.

However, critics argue the doctrine is too broad and can unjustly deny relief to injured individuals. For example, victims of accidents caused by regulatory failures may find their claims dismissed if the government frames the action as policy-based. This tension highlights the importance of judicial interpretation in narrowing or expanding the scope of the exception.

Practical Implications for Plaintiffs

For individuals considering claims against the government, understanding the discretionary function meaning is crucial. Plaintiffs should assess whether the challenged conduct involves:

  • Mandatory rules that leave no room for discretion.
  • Policy-based judgments involving social, economic, or political considerations.

Because courts heavily analyze case-specific facts, outcomes vary. Plaintiffs often face extensive motion practice, and many cases are dismissed before reaching trial if the court finds the exception applies.

Anyone evaluating a potential FTCA case should seek legal guidance early, as specialized experience is often necessary to navigate this complex area of law. You can connect with experienced attorneys through UpCounsel if you need assistance.

Frequently Asked Questions

  1. What is the discretionary function exception?
    It is a legal rule under the FTCA that bars claims against the federal government when employees make policy-based discretionary decisions, even if those choices cause harm.
  2. How do courts determine if it applies?
    They use a two-step test: whether the action involved judgment or choice, and whether that judgment was grounded in policy considerations.
  3. Does the exception apply to all government mistakes?
    No. Routine negligence, operational errors, or violations of mandatory regulations usually fall outside its scope.
  4. Why does the government have this protection?
    The exception preserves the government’s ability to make policy decisions without constant judicial interference or second-guessing.
  5. Can plaintiffs still win FTCA claims despite the exception?
    Yes. If a plaintiff shows the government’s action was not policy-driven or violated mandatory rules, courts may allow the claim to proceed.

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