Regulatory Discretion: The Supreme Court Reexaminea the Discre. tionary Function Exception to the Federal Tort Clams Act

• Author: by Danaid N. Zillman
• Pages: 04

1. INTRODUCTION

   The Federal Tort Claims Act (FTCA) celebrates ita fortieth birthday in 1986 The Act has largely achieved ita objective of repudiating saver. eign immunity in ordinary tort situations, thus making the United States liable in damages for the negligent or wrongful acts of it8 officers and employees. Victims of vehicular negligence. medical malpractice. or careless property maintenance by the United States now routinely receive compensation far meritomus claims.

   The picture 1s 1.88 clear, however, when more novel theories of tort ha. biiity are involved. A m a p statutory hm>tatm in the FTCA to such theories of hability is the ban on liability for a "discretionary function"

   of the government.2 "Discretionary function" was not defined in the 1946 statute or ~ t e subsequent amendments. The leg~slative history regarding diseretionq function was brief and for the most part unhelp. ful? The United Ststea Supreme Court attempted to clarify the meaning of the term in Dalehzte L. Umted States in 1953 Dalehite examined liability against the United States for the catastrophic exploaan of fertilizer-grade ammonium nitrate that leveled Teras City, Texas, in 1947. Dozens of lower Court decisions aince Dalehite have suggested that the Supreme Court's opinion caused more confusion than It resolved. Yet, far another thirty years, the Supreme Court refused to decide another discretionmy function case. During that time, the lower courts

   '28 US C 5 263Ola) 11982) holds the United Sfatea ma) not he held hahL under the

   Tart Clsuns Act for

   Any clam based upan an act or omission of en employee af the Gaiernment

   ererclslng due care, m the execufmn of B llsture UT regulafm whether or not such lhfute or regulstmn he vshd, or based upon the exerelae or perfar-manee or the fahre to exercme or perform B dlacrefionary function or duty on the part ai a feded agency or an employee ai the Gaiernment. whether or not the dmcretian invalved he accused

   The section contains IW prohibitions on goiernmenf habliify The first, 'exarriamg due care, m the exemtian of ashruteorreeulanon"haarare1y heenlhesubiect af htigsnonbe cauee the requrremenf of "exercrsing due care' wuld undercut the allegation oi a "neeh-gent or wrongful act on the part of B United Statea emplayee Lnigation mvolvmg mfmn 26301s) has faeuied on the second p'oh~brtian--rhe"dlscretianaiy funcnod' prohibition

   'The leprlstne hatory IS iummarmed VI L Jayaon Handhg Federal Tart Clams 5 246(1984) In United Brater Y L'arrg Airhnes, 104 S Ct 2756 rehk dmrd. 106 S Cr 26 (1984). the Court rned the mmr reieahng provmon of legdatlie hmtary regardvlg the meanmg of the dircretlonaIy funrtmn exceptmn

   The legrdalni materish of the Seventy seventh Cang~silllu~irals most

   clearl) Congrers purpose m faihionmg the darretionary funrtmn exceptm A Gorernmant spokesman appearing before the House Cammitree on rhe Ju-dmaiy dexrlbed the dwretmary funrtmn exceprmn BQ a "h~ghly important exce0fwn~'

   [If IS] designed to preclude apphcation ai the act to B clam based upon an 81. legod ahuse of discretionary authority by a regvlatary or lieensmg q e m - for example. the federal Trade Commi~sion, the Securities and Exchange Commasm the Farelgn Fundi Control Office ai the Treasury. or atherb It

   IS nether deivahle nor mtended that the conciitvlionahiy of legidation the legahfy of regnlstmi or the proptiety of B decrarmaiy admrnnrtrarwe act should be tested through the medim of B damage init for tort The same haldr true of other admlmstratne actm nm ai a mmlaton nature. such as the expenditure of Federal fundi. the execution of .%derai pmiect. and the like

   On the other hand. the common Isw foris of em~loweaf remlsror~ awn- ciea. as well ns of aU other Federal agenciei, rahbhe md&d uithm-the scape of the hlll Hearlngn on H R 6373 and H R 6463 before the House Cammrrtee on the Judiciary 57th Can#, 2d Sew 28 33 119421 lstarement

   Foarnore 9 states "The Commrrtee incorporated the Goiernmenf 5 viei into I- Report 81. moarverbarim HR Rep 50 2245,57fhCong,2dSeis 10119421

   '346US 1611963)

   19851 REGULATORY DISCRETION

   had expanded government tort liability by rejecting discretionary func. tion defenses on the part of the government. The decisions were influenced by a willingness of plaintiffs' attorneys to aseert a variety of imaginative tort claims against the United Statel. This expansion of United States liability corresponded to an expansion of the liability of state and local governments and government officers in tort and related acti0ns.l Contemporary claims against the United States have not only asked for multi.miUion dollar damage awards, but have challenged significant government decisions. Recent FTCA cases have challenged atomic bomb testing; chemical warfare programs,' the regulation of nuclear powerp1ants.l the regulation of financial institutions,' and government responsibility far the u8e of Agent Orange in Vietnam.LY

   The decision of the United States Supreme Court in United States u. Vang A~rlznes,'~on June 19, 1984, provided an opportunity to reformu. late diicretionary function law. While the Court in Vong emphatically decided the two companion eases in the government's favor, it left much unclear. The opinion paid little attention to the evolution of &acre. tionary function law since 1953. Even in the ares of government liability for negligent inspection, the point at issue in the cases, the opinion left many matters unresolved. As a result. loner courts, administrative agencies, and attorneys will continue to struggle with the meaning of the discretionary function exception.

   A previoua 1971 study by the author examined the discretionary func. tion exception through the mid.19108." The article noted that lower federal courts had recently begun to hmit the government's immunity under the exception. This article will examine developments since 1977, paying particular attention to the Varig decision. The initial section will examine the numerous discretionary function decisions in the lower

   __

   'See 2dlmm. The Chungmg.Mianing of Duirrlion Eiolvlion in the Fedimi Tort Chimi

   'Allen > Unrred States 688 F Svpp 247 (D Utah 19841 See also Begay v Unrted 'UmtedStatesv Nwm, 696F 2d 1229(9thCu 1983)'GmerslPubbcUtlllrles~ Unlfedsfatea S61F Svpp 521iED Pa 1982)'In ?e Frankhn Nat'l E s i Securities Litigation 418 F Supp 210 IE D N Y 1979) First

   '%re AgentOran%eProductLiablliti Liirgatlon 606F Supp 762iE D II 1 1980) "104s Cr 2756,rrh'~dmidlO~S

   Ac1.76Mll L Rev 1.21-30119711lhere~naftereiteda~Zi~soISlates.SO1 F Supp 991 ID Aru 1984)(expobureoEuranivmmlnars facancerrisk~l

   Saivlgsv Fystf~dpralSavmya,j41F Svpp 988(D Haran19821

   '~Zdlman.supra"ote6

   Cf 26i19641

   NILITARY LAW REVIEW [I'd 110

   court8 between 1977 and 1984.1s The second section will analyie the decision of the Supreme Court m Vangig. The concluding section will examine the impact of Vmg on the lower court diacretionary function cases. It d l also suggest the critical issues that will confront courts in theyears ahead

   11. THE EVOLCTIOS OF DISCRETIOSARF FCSCTIOS LAW 1977-84 A. THE FA CTLYL C0NTE.VT OF THE CASES

   The 1977 study of the discretionary function exception found that several areas of negligence had been recognized as not involving discre. tionary functions The four most familiar were motor vehicle operation. routine building and property maintenance, medical malpracnce. and negligent ground control af aircraft In the first three areas, State tort decisions had established rules of liability m case8 not involving government defendants FTCA cases, therefore, could follow those well recognized precedents. In the case of air traffic controller negligence, nosignificant nongovernmental body of lax exists To fill this void. FTCA cases defined standards of controller conduct by drawing on precedents from other cams of professional malpractice. In these four factual areas the courts had made clear that the United Statea could not escape liability by asserting that the government emplayee'a action was discre. tionary.

   In contrast, certain factual situations were regarded as discretionary funchons, fyeemg the government from tort liability even though the other elements of an FTCA smt existed Among these situations were flood control and irrigation activities, law enforcement, regulatory and licensing actirmes, and matters involving the mhtary and foreign relations Two factual areas m 1977 had divided the courts on the application of the discretionary function exception. They were suits for sonic boom damages and suits for fadure to exercise care for government psychiatric patients." The latter actions were divided between cases which involved the patient harmmp himself and cases nhich involved

   "Id ai 13

   'Id ZI 17-14

   1988] REGULATORY DISCRETION

   harm caused by the patient to others. In either case the government was charged with neghgence III the supervision and care of the patient.

   The discretionary function cases decided from 1971 through 1984 generally upheid prior precedents, but introduced several new factual issues. No c a m involved automobile accidents, nonpsychiatric medical malpractice, or aircraft controller negligence. Only one case involved sonic boom damage." In these areas, therefore, we may summe the cowm have conveyed the message that the discretionary function exception will not be given serious consideration The government has stopped raising the exception in these casea, either out of m p c t for precedent or from a sense that sound litigation strategy discourages raising clearly spurious defenses.

   Government property maintenance cases continue to provide discre. tianary function decisions for the courts. Courts have both accepted" and rejectedxs the discretionary function exception in these cases. Many of the cases, however, involved the government's responsibility over undeveloped areas like parks, wilderness areas, public lands, and water. ways. Here discretionary function questions blend with arguments over the government...