THE ELUSIVE DISCRETIONARY FUNCTION EXCEPTION FROM GOVERNMENT TORT LIABILITY: THE NARROWING SCOPE OF FEDERAL LIABILITY
| DOI | http://doi.org/10.1111/j.1744-1714.1992.tb00660.x |
| Author | GARY L. GITTINGS,JOHN W. BAGBY |
| Published date | 01 September 1992 |
| Date | 01 September 1992 |
THE ELUSIVE DISCRETIONARY FUNCTION
EXCEPTION FROM GOVERNMENT TORT
LIABILITY: THE NARROWING SCOPE OF
FEDERAL LIABILITY
*JOHN
W.
BAGBY
**GARY
L.
GITTINGS
INTRODUCTION
In
the law of sovereign immunity, the discretionary function ex-
ception (DFE) distinguishes between acts that expose the government
to tort liability and acts that do not. The DFE
is
a protected zone
Congress engrafted on the Federal Tort Claims Act (FTCA) in
1948.'
The DFE
is
one of the last surviving remnants
of
sovereign immunity,
which has steadily been eroded since the
1940s.
Similar protections
have developed under statutory exceptions or by decision in most
states.2
*
Associate
Professor
of
Business Law, The Smeal College of Business, The Penn-
**
Assistant Professor of Business Logistics, The Smeal College
of
Business, The
sylvania State University.
Pennsylvania
State
University.
28 U.S.C.
$
2680(a) (1988),
60
Stat. 842, 79th Gong. (1946).
The provisions of this chapter and section 1346(b) of this title shall not apply to-
(a) Any claim based upon an act
or
omission of an employee
of
the Govern-
ment, exercising due care, in the execution of a statute
or
regulation, whether
or
not such statute
or
regulation be valid,
or
based upon the exercise
or
performance
or
the failure to exersise
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.
*
See
infra
notes 97-164.
224
I
Vol.
30
I
American
Business
Law
Journal
Commentators have noted many difficulties in identifying the pre-
cise boundaries of the
DFE
protected zone.3 Courts have struggled
with several “semantic dichotomies” to aid in the analysis. These
include the governmental-proprietary dichotomy, the planning-oper-
ational dichotomy, and the discretionary-ministerial dichotomy!
How-
ever, the guidance that has emerged from nearly
50
years of common
law, legislative history, and theoretical analysis is satisfactory in only
the simplest of cases.
It
falls short ‘particularly in the increasingly
complex governmental functions that parallel private sector activities.
There is general agreement that government policy making deci-
sions should not be second-guessed through the tort ~ystem.~
How-
David
S.
Fishback and Gail Killefer,
The Discretionary Function Exception
to
the
Federal Tort Claims Act: Dalehite
to
Varig to Berkovitz,
25
IDAHO
L.
REV.
291 (1988-
89)
(considered decision not a federal requirement); Bruce A. Harris and Robert Cox
Schnepper,
Federal Tort Claims Act: Discretionary Function Exception Revisited,
31
U.
MIAMI
L. REV.
161
(1976);
Cornelius
J.
Peck,
The Federal Tort Claim Act:
A
Proposed Construction of the Discretionary Function Exception,
31
WASH.
L.
REV.
207
(1956);
Mitchell G. T. Plave,
United States
v.
Varig Airlines: The Supreme Court
Narrows the Scope
of
Government Liability Under the Federal Tort Claims Act,
51
J.
AIR
L.
&
COM.
197 (1985)
(Varig
court ignores planningloperational principles estab-
lished in earlier decisions and unnecessarily expands discretionary function protection);
Osborne
M.
Reynolds,
The Discretionary Function Exception of the Federal Tort Claims
Act: Time for Reconsideration,
42
OKLA.
L. REV.
459 (1989)
[hereinafter Reynolds,
DFE:
Reconsideration]
(planning v. operational test provides sufficient analytical approach
to application of exception while maintaining basic purpose of the Act); Osborne M.
Reynolds,
The Discretionary Function Exception
of
the Federal Tort Claims Act,
57
GEO.
L.J.
81 (1968)
[hereinafter Reynolds,
DFE];
Robert D. Thornton,
Federal Tort
Claims:
A
Critique
of
the Planning Level-Operational Level Test,
11
U.S.F.L. REV.
170
(Fall
1976)
(planning level-operational level test lacks required flexibility to analyze
complex discretionary function questions on basis of nature
of
decision); John C. Vance,
Impact of the Discretionary Function Exception on Tort Liability of State Highway
Departments,
6
LEGAL
RES.
DIG.
1
(June
1989)
(Report prepared by the Transportation
Research Board under National Cooperative Highway Research Program Project No.
20-6
“Legal Problems Arising Out of Highway Programs”; Donald N. Zillman,
Congress,
Courts and Government Tort Liability: Reflections on the Discretionary Function Ex-
ception to the Federal Tort Claims Act,
1989
UTAH
L. REV.
687 (1989)
[hereinafter
Zillman,
Reflections];
Donald N. Zillman,
The Changing Meanings of Discretion Evolution
in
the Federal Tort Claims Act,
76
MIL.
L.
REV.
1 (1977)
[hereinafter Zillman,
Evolution];
D.
Scott Barash, Comment,
The Discretionary Function Exception and Mandatory
Regulatio.ns,
54
CHI.
L. REV.
1300 (1987);
John R. Garrett, Case Comment,
Scope
of
the
Discretionary Function Exception UTL&~ the Federal Tort Claims Act,
67
GEO. L.J.
879
(1979);
Thomas
H.
Rice, Note,
United States
v.
Varig: Can
the
King Only Do Little
Wrongs?,
22
CAL. W.
L. REV.
175 (1985)
(mandated regulatory activities negligently
performed not addressed in
Varig
decision) [hereinafter Note,
King];
Note, The Dis-
cretionary Exception and Municipal Tort Liability: A Reappraisal,
52
MI”.
L.
REV.
163 (1968)
[hereinafter Note,
Reappraisal].
See infra
text accompanying notes
97-138.
See
e.g.
Berkovitz v. United States,
486
US.
531, 537 (1988).
This is justified
as
a step necessary to attract competent government servants and
for
efficiency through
1992
I
Discretionary Function Exception
I
225
ever, it is difficult to reliably distinguish immune governmental action
from governmental excursion into private sector activities, for which
there is liability. The various judicial and legislative formulations of
the DFE
are
cast in language that, unfortunately, retains significant
ambiguity in characterizing the extent of protected policy-based dis-
cretion. There has been uncertainty about why purely governmental
activities should be protected, what constitutes public policy judg-
ments, and how to accurately draw the line separating the immune
acts of discretionary decision making from non-policy based imple-
mentation activities for which government is held responsible?
The first phase in analyzing the challenged conduct for the presence
of the protected discretion is an examination of whether the action
is authorized and “a matter of choice for the acting employee.”7 The
language of several discretionary immunity statutes, the FTCA pro-
vision,s and the very nature of discretionary conduct suggest that
DFE encompasses conduct with an element of judgment and choice?
A second phase
is
a determination whether the challenged decision
is the kind envisioned for the discretionary function protection. This
is an inquiry into whether the decision reflects a policy-based decision
making process that encompasses social, economic, and political fac-
tors.lo
This article examines the parallel development of the DFE under
the FTCA and under certain
state
statutes and decisions that waive
state sovereign immunity. The article exposes the faulty reasoning
in this line of cases and delineates the legislative history of the
statutes.
It
proposes a more theoretically coherent model for analysis
of DFE. This model clarifies governmental immunity without return-
ing to the vagaries of the cumbersome and unpredictable system of
private compensation bills or to the erroneous theories underlying
sovereign immunity. The model also reflects new insights into the
complexity of administrative process as tort liability evolves into
another means of judicial control over the expansion of regulators’
influence.
PROTECTED
ZONE
FOR
GOVERNMENT
POLICY
MAKING
In analyzing the DFE, both
state
and federal law must be addressed
because both the FTCA and state DFE concepts are developing in
deference to regulators’ expertise. However, there are other reasons, such as the need
to maintain separation
of
powers.
See
infra
text accompanying notes 165-191.
See
infra
text accompanying notes 23-28 and 97-164.
’
Berkovitz v. United States, 486 US. 531, 536 (1988).
28
U.S.C.
2680(a) (1988).
See
Berkovitx,
486 US. at 536, and
infra
text accompanying notes 35-164.
See
infra
text accompanying notes 97-138.
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