The Discretionary Function Exception and the Suits in Admiralty Act: a Safe Harbor for Negligence?
Publication year | 1981 |
Congress traditionally has delegated broad discretion to government agencies carrying out their statutory duties.(fn1) This grant of discretion has immunized certain government actions from liability.(fn2) The Federal Tort Claims Act(fn3) (FTCA) contains an explicit provision, the discretionary function exception(fn4) that shelters all "discretionary" acts from judicial scrutiny, regardless of whether they are negligent or otherwise. This provision is not present in the Suits in Admiralty Act(fn5) (SIA). Nevertheless, several circuit courts have questioned whether to impute certain exceptions of FTCA into the SIA. This issue arises from the 1960 amendments to the SIA allowing admiralty suits against the United States if the plaintiff could maintain a suit against a private individual.(fn6) Thus, the amendments substantially broadened the federal government's amenability to suit. To avoid this newly imposed liability, the government has asked courts to apply the FTCA's limitations of liability, particularly the discretionary function exception, to the SIA. The First and Seventh Circuit Courts of Appeals have accepted the government's argument.(fn7) The Fourth and Fifth Circuits, however, have refused to apply these limitations to the SIA absent a clear expression of congressional intent.(fn8)
This comment will examine first the FTCA and the SIA and their legislative histories. Further, this comment will focus on the different circuits' responses to the issue of whether the SIA should be read in light of the discretionary function exception. This examination will expose the insufficiency of the First and Seventh Circuits' rationale for implying the FTCA exceptions into the SIA. This comment will conclude that the 4th and 5th Circuits' approach best follows congressional intent, sound rules of statutory construction, and avoids the adverse effects of imputation of the FTCA exception into the SIA.
With the advent of World War I and government entry into the otherwise privately owned merchant shipping business, Congress decided to remove the sovereign immunity barrier for those injured in the course of governmental shipping activities.(fn9) Enacting the SIA in 1920,(fn10) Congress authorized suits against the United States only in cases involving government merchant vessels and cargo "where if such vessel. . . or if such cargo were privately owned . . . a proceeding in admiralty could be maintained."(fn11) Problems arose, however, as to jurisdiction and proper interpretation of the statute,(fn12) prompting Congress in 1960 to take steps to remedy these difficulties,(fn13) resulting in a substantial broadening of the scope of governmental liability for maritime claims.(fn14) As amended, the SIA now encompasses all maritime claims, not just those involving government merchant vessels and cargo, if the same claim could be brought against a private individual.(fn15)
Between the 1920 enactment of the SIA and the 1960 amendments, Congress passed the FTCA, waiving sovereign immunity for tort claims arising from the negligent or wrongful acts of federal government employees.(fn16) The Supreme Court noted that the FTCA "was not an isolated and spontaneous flash of congressional generosity"(fn17) but rather the result of thirty years of congressional debate over the justness of sovereign immunity.(fn18) Unlike the SIA, Congress expressly limited the waiver of sovereign immunity from tort claims by enumerating specific exceptions based on particular policy considerations.(fn19)
The discretionary function exception, precluding liability for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function . . . whether or not the discretion involved be abused,"(fn20) has been a source of constant controversy.(fn21) Never adequately defined, the discretionary function exception shields the negligent acts of government officials from liability if the injuries resulted from the exercise of broad discretion entrusted to the government employee. This provision precipitated the conflict between the First and Seventh Circuits and the Fourth and Fifth Circuits, because the government urged judicial extension of this exception to the SIA.
Thus, despite the absence of an express discretionary function exception in the SIA, the
The First and Seventh Circuits' premise for applying the discretionary function exception to the SIA is that government agencies must allocate their limited resources to those activities that best promote the public interest.(fn43) Allocation of these resources involves careful consideration and delicate balancing of numerous factors. Given these limitations, the public cannot expect the government to adopt all programs regardless of expected costs and benefits.(fn44) Thus, it is within the agency's discretion to evaluate its goals in light of limited funds, equipment and manpower.(fn45) Agency expertise and judicial inability to investigate and weigh fully all pertinent factors in highly specialized areas convinced the First and Seventh Circuits that courts would be engaging in ineffectual second-guessing of the wisdom of executive and legislative conduct.
Although not explicitly stated, both
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