The Discretionary Function Exception and the Suits in Admiralty Act: a Safe Harbor for Negligence?

• Publication year: 1981

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 4, No.2SPRING 1981

The Discretionary Function Exception and the Suits in Admiralty Act: A Safe Harbor for Negligence?

Kathryn C. Nielsen

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.

Gercey v. United States (fn22) best illustrates the First Circuit approach to this issue. The decedent's parents brought a wrongful death action under the SIA against the United States, alleging the Coast Guard negligently failed to adopt a comprehensive program designed to notify the public of vessels failing to meet certain safety standards.(fn23) In Gercey, the only action the Coast Guard had taken was removal of Coast Guard certificates from such vessels.(fn24) The court recognized that the decision whether to institute a comprehensive program was within the Coast Guard's discretion.(fn25) The court based this decision on a reading of 46 U.S.C. § 391a(fn26) and § 391,(fn27) mandating only that the Coast Guard make some periodic inspections of vessels, leaving the precise method to the Coast Guard's discretion. Thus, the court found no express or implied duty in the Coast Guard to implement procedures suggested by plaintiffs as more effective.(fn28) The court characterized the Coast Guard's decision as a basic policy judgment for which Congress designed the discretionary function exception.(fn29)

Thus, despite the absence of an express discretionary function exception in the SIA, the Gercey court found that sound principles required imputing the discretionary function exception.(fn30) Without this immunity for decision-making, the court reasoned, independent judicial review would disrupt all legislative and administrative decisions involving the public interest.(fn31) Without explaining why, the court stated that such interference would create "an intolerable state of affairs."(fn32) Thus, the court refused to consider whether the Coast Guard was liable for its failure to adopt a comprehensive program to protect the public from unsafe vessels.(fn33) Another First Circuit Court held similarly, recognizing the need to protect agency policy-making in the future.(fn34) After reviewing the split in the circuits, the Seventh Circuit Court of Appeals adopted the First Circuit's approach. In Bearce v. United States(fn35) plaintiffs brought an action under the SIA to recover for the wrongful death of a speedboat operator who struck a Shore Arm Extension.(fn36) Plaintiffs argued that the Coast Guard negligently failed to provide any lighting to prevent collisions with the breakwater.(fn37) Although the Coast Guard had previously attended public hearings and consequently recommended placing a red flashing light on the end of the Shore Arm Extension, it never acted on this recommendation.(fn38) The government claimed the acts were part of their discretionary duty and protected by the discretionary function exception.(fn39) The Bearce court agreed with the Gercey reasoning and therefore, did not hold the government liable for its failure to install the light.(fn40) The Bearce court stated that, despite the absence of any express discretionary function exception, basic policy considerations, such as budgetary concerns and administrative independence, prohibited the broad waiver of immunity plaintiffs asserted.(fn41) To bolster their decision, the court also noted that the purpose of the 1960 amendments was to clear up jurisdictional confusion only, not to expand the scope of governmental liability.(fn42)

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 Bearce and Gercey's assertion that the discretionary function exception should apply to the SLA is rooted in the separation of powers concept. Noted commentators have defined this doctrine a "constitutional arrangement for limiting power through diffusion of authority among various units of the government: the allocation of powers among the three branches of the national government."(fn46) This constitutional allocation(fn47) not only vests certain powers in the judicial, legislative, and executive branches, but is designed to protect the integrity and autonomy of each branch.(fn48) A constitutional keystone,(fn49) it provides the basis for courts' reluctance to review the propriety of actions committed to coordinate government branches. Each branch should be free to "plan, experiment and negotiate"(fn50) without fear of disruptive interference from others. Thus, it follows that the...