The Changing Meanings of Discretion: Etolutlon in the Federal Tort Claims Act Etolutlon in the Federal Tort

AuthorDonald N. Zillman
Pages01

After more than two decades of congressional actwit? and scholarlv persuasion.' Congress passed the Federal Tort Claims Art2 as a part of the Legislatire Reorganization Act of 1946. The Act mixed high-minded concern mer the failure to compensate victims of negligent or wrongful gmernment acts and a more oractical desire to rid the Conmeis of the several thousand prirate relief bills that proted a b\-product of federal sovereign imm~nity.~

In broad terms the FTCA authorized suit against the United Statesfor injun or loss of propern or personal mjuq or death caused b\ rhe negligent or wrongful acr or ommmn of

place where the act or arniriion occurred

In brief. the Art authorized federal courts to appl) respondeat superior liabilitv against the United Stares.

!\'hat the Government gave, however, it could also take away. The lengthy "exceptions" in the FTCA retained immu-*The opinions and conduimns expressed in this arriile are rhox of the author

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* 28 L' S C I2672

nit\ mer a tarieti of go\ernment acti\itics.i Thc most norahle exception !\as sectmn 2680(a) irhich bars recmen on:

An\ claim bared upon an act or omission of an ernploiee

fohance or the failure to exe&ise or perform a d i s k tionan function or duo on the parr of a federal agennor an emplmee of the Government whether or not rhe discretion imohed be abused.

The initial portion of the section iihich concerns acts ''inexecution of statute or regulation" has rareli been the subject of litigation The discretianan function exception. honeier. has prmen to be the lnclicst prmision of the Federal Torr Clams Act.

This article nd1 assess the contemporar) role of the discretionary funcrmn exception The initial section will examine judicial interpretation of the exception through 19iO hi focusing on Dolehzte v. Vnzted States,' still the Supreme Court i leading case on the exception. The next section will examine trends in the judicial interpretation of the concept of discretionan authorit) in three related areas-mandamus. recoven of tort damages hi mdkiduals from states and municipalities. and reca\er\ of damages from individual gmernment emplqees. i\s Lester Ja)son. the Act's most dedicated chronicler,% has ohserred, these areas Mere w,ell estahhshed in 1946 and prmided a basis for interpreting the neu 'discretionan function" language of the Tort Claims Hoire\er. changes in each area since 1946 suggest the appropriateness of a changed interpretation of the FTC.A discretimar) function provision. The following section *ill consider four recent

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court of appeals decisions which indicate a judicial willingness to rethink the exception's balance between protecting critical government actkit) and redressing injury to citizens.

  1. THE DISCRETIOKARY FUNCTION EXCEPTION

Commentators have traced capabl) the limited legislative history of section 2680(a).'O The most frequenrl) cited piece of legislative historv stated a desire to prment suits for damages resulting from activities such as nonnegligent flood control or irrigation projects or from authorized regulator) actisit) of the Federal Trade Commission, Securities and Exchange Commission or the Treasur) Department even If negligence was alleged. However, "the common law torts" of such agency emplorees could be compensable under the Act." While Congress may have felt it s-ai providing some guidance, it was evident that the federal courts would write the histor) of the discretionary function exception.'2

\Chen re\ies-ing the activities of 1946 three decades later, one must recognize that the FTCA moved the federal government to a position of leadership in goiernmental tort compensation Mast states and lesser organs of government shielded their activities with the defense of absolute immunity or with unnorkable distinctions betseen governmental and proprietary function^.'^ B) removing these obstacles to recorery, Congress made tort recmer) from the United States far more satisfactory than from the lesser gawrnmental entities.

The mmal discretionary function cases provided limited anal)sis of the pro~ision.'~

Significant anal!iis and controversy

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note I PC I 2 4 6 '"The terms 'discretionan function exception'' and reruon 2680(a)' h111 bc uscd throughout rhir art1rle re rcfer to the dlrcreuonar, funillon clause of $ec.

H R RIP Yo 2245 77th Cone 2d Sess 10 (1954) cmd I" L l ~ ~ s o n .

milia

about section 2680(a) began uith Dolriiztr u L'nzird Stntrr Dalehitr was the test case against the United States to detet-mine the existence of gmernment Iiabllm for the 1947 explosion that destrmed half of Texas Lit,. Texas The facti of the case haie been well detailed elsei

a n funicinn" delrnse Some

fuvnd that the mpurmnic a i the European Aid Pra~rsmmight ha

The Supreme Court affirmrd the denial of gmernment habilm isithoot revie*mg the district courr's findings of negligence. It found the FTCh nas passed to recompense far "the ordinan common-Ian torts" but not claims ' honeier negligentl\ caused. that affected the gu\ernmental funcrionr." I"

HaLing found the gmernment actions to hare been dircretmnari functions for purposes of section 2680(a). the Court held it "unnecessarr" to decide "preciseh \\here discretion ends " Arsuredli itincludes more than rhe muation of programs and a subordinates i n accordance xith official directives ofsuperior^.^' In the most memorable phrase of the case. all de-cisions intolwd vere "respaniiblt made at a planning rather than operarional le\el." €inall\ am Coair Guard negligence was protecred because of the generalli diicrerionar) nature af

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"id .,I 34-40"'Id at42

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public health and safer! iegulationr and the nonexistmic of analogous prnate h a b h ~ ~ . ~ ~

J L I S I L C ~ S

Jackson. Black and Fmnhfurter dissented The, found ample negligence "bi those in charge ut detail" and no eiidencr that d e c ~ o n makers had in fact rakn a calculated risk ji The cl~senteri rejected the 'planning iersus opcrational diirincrwn of the rnajont\. Instead thri disringiiiihetl between "policr decisions of.a regulatori or goLernmental natu1e" and acts dealing "od\ tilth the housekeepfrrlel-al actt\~t~s,''

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Thc formur shoiild br proper1 b\ the dircretionan function exception. rhe latte man\ of rhc acts ~n Dalihitr. should not be imniuni

Commentators hd\e genrralh sided i>ith the minorit). Professor James opposed the protection of "non-political" Jude rnents implied b, the decision and suggested repeal of 2680(a).?' Professor Peck deplored rhr ldil of deai cuniie(-tion betr\een rhs negligrnt airs and the grnernment pol^\ al-legedli being protected \Ir Jation found 1 1 1 ~

planning-operational distinction unhelpful and fallexception to situations >ihcre 'the discrehabe a close afiinit) tc> [he businris of geriiment " >'' Professor Mathcas also didat the eyception and favored a limitation to discretion "a-thorired bi the Constitution ni organic statute of the agetic\ iniulr ed.' ?''

Deipite the merits of [he cntiial comment. Dol~hzti IS no[ indefensible from the 1933 prrspecti\e. In retIoipect t h r ~ ~

factors stand out. Fmt, government negligence in the case IS

debatable. Although the dmrrict court found ample negligence on the part of the Government the Supreme Court majorin, nhile purporting to accept the findings helox and decide the case on the diicrerionarr function exception, seemed persuaded that government emplqees and officials had exercised the care of reasonable men. The need for further combustibility tests on the FG.W 1s an example. The Court ahserved thar the manufacturers relied on the satisfactor) experience of the Tennessee Vallet Authoritr with FGAX "Obviously, ha\ing manufactured and shipped the cammadit) FGAN for more than three )ears nithout men minor accidents, the need far further experimentanon *as a matter of discretion." 31 The Court might ha\e added "and iieight) evidence thar goxernment emplmees had not been negligent." In the following paragraph of the Dalrhtte opinion, the Court stressed the compliance with the plan drafted br the Field Director of Ammunition Plants relving on the TVA and prilate enterprise experience. Again, negligence and discretion language are both present. In conclusion, the Court summarized:

The entireti of rhe eiidence compels rhe view thar FGAN was a material char former experience showed could be handled safelu in the manner II xai handled here. E ~ e n nou, no one'har suggested rhe rhe ignirion of FGAK was anvrhmg but a complex result of the mteract-mg facrors of mass. hear. pressure and campo~mon.~~

The majorit, found ''serious room for speculation" that negligence b\ the French Council, longshoremen and staff-not government emplo,ees--itarted the Initial fire.34 In brief, one leaves the majorit! opinion convinced that fi\e members of the Court might hate decided for the Government on negligence grounds If no discretionarv function exception had been present

The second factor justifling the Dniuhttt decision was the sheer magnitude of the disaster. Justice Jackson's scornful dii-sent remarked thar the majorit) had revised "The King can do no wrong'' Io "The King can do onl, little wrongs " 3s while

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Portion3 of the district court op~n>onare appended at 346 US

(19691

15, 45-47

pungent this obienation 15 unfair The Court rhimld piuperl) ha\e ashed \>hat congressional intent iias cimcerning United Sratei hahilit> to, mass disaster. Certainl\, pro~isioni of the FTCA ei~dence legiilatne intent to confine liabdit) for mass disaster Combat actwin claims. one SOUTCC of masine habiliti, are The suggested exemption far gorernmen1 iegulator) acts and cnil work5 projects immunired trio other potentiall) high liabiliti aiti\ities.3i Piocedurallx. the hct's limitation on attornmi' fees.jS har of punitire damagss.l' and prohibition ofjur! trials 'I' midenied cautmn far the taxpa~erdollar.

The third factor supporting the Dnluhtt

The...

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