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Federal Tort Claims Act’s Discretionary Function Exception – or when you can actually sue the government for money damages

December 13, 2018 | News

The federal government employs a lot of people, and at times those federal employees are negligent and cause damage.  Many people think it is impossible to sue the federal government for money damages – and as a general rule, they are correct.  The doctrine of sovereign immunity prevents suits against the sovereign (in this case the democratically elected government, where traditionally sovereign immunity applied to kings and queens) unless the sovereign decides it wants to be sued for certain things. When the federal government is involved, the law that allows the government to be sued for money damages for causing injuries is the Federal Tort Claims Act (FTCA). It is a blanket waiver of immunity – meaning that it opens the government up to lawsuits in federal courts, without juries, with some strict procedural requirements discussed in another article – for

civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.1

The FTCA was designed by congress for the “ordinary common-law torts.” Though it isn’t expressly limited to those torts.  It covers anything that a private citizen could be sued for in the state where the injury occurs.  The ordinary common-law torts that are most often litigated against the federal government are car/truck wrecks, medical malpractice and trees falling in urban federal parks.

In order to keep the FTCA confined to “ordinary common-law torts” and away from just about everything else, Congress enacted a long list of exceptions to the FTCA.3  These cover any discretionary act of a government agent, any claim arising out of the loss or negligent transmission of a postal matter (damages caused by loss of mail), any claim arising out of the collection of taxes or customs duties, property seizure, quarantine, any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, deceit or interference with contract rights.  The “assault”, “false arrest” and “malicious prosecution” exceptions will be discussed in an different article.  What this article focuses on is the “discretionary function” exception – what it means, how it applies, and what kind of cases are left to bring against the government when its employees are negligent and cause injury.

As a side-note, the FTCA applies only to acts that occur in the United States, but is not limited to citizens of the United States. Anyone in the United States can bring a claim under the FTCA so long as the claim fits within the statute and doesn’t run afoul of the exceptions.

 The most litigated exception to the FTCA is the “discretionary function” provision, which provides that the Act's waiver of sovereign immunity "shall not apply to":

Any claim . . . based upon the exercise or performance or the failure to exercise 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.4

This was meant to keep private citizens from using the courts to second-guess policy decisions by government officials.  When a lawsuit is brought against the government, and the discretionary function exception becomes an issue, the courts will first consider whether the conduct at issue "involves an element of judgment or choice."5  Where there is a federal statute, regulation or policy specifically prescribes a course of action to follow, there is no discretion.  “The exception thus does not apply to a claim that an agency failed to "perform its clear duty" or to "act in accord with a specific mandatory directive."6   The more heavily regulated the area of government action – not just with laws, but with regulations, instructions, and manuals of actions for the government employee, the more likely it is that the employee’s action in deviating from those regulations/instructions/manuals will make the government liable for the employee’s conduct.  The important distinction is that the plaintiff in the lawsuit cannot complain that they don’t agree with the regulation or that the regulation itself caused the injury. The only way there is a lawsuit is if the regulations would have prevented the harm had they been followed, and they weren’t.

This applies to federal regulations as well as state regulations governing the federal employee’s conduct (like driving rules – rights of way, red lights, etc.) and other standards of conduct for a particular profession (medical standard of care breached, leading to medical malpractice claim due to government/military doctor causing injury).

Second, if the conduct does involve some element of judgment or choice, the court will determine whether the "judgment is of the kind that the discretionary function exception was designed to shield."  The closer the decision is to policy-making, the more likely it will be used by the courts as a shield to recovery. 

Further, as case law has shown, the courts are less likely to shield government behavior which looks malicious, mean-spirited, or spiteful when done under the guise of official action.  The case Loumiet v. United States involved a bank officer who was prosecuted by the Office of the Comptroller of the Currency (one of the federal bank regulators) when the bank officer reported OCC employees for making racially derogatory remarks about the mainly Hispanic bank employees during an audit.  The D.C. Circuit Court of Appeals – not one known to be particularly liberal – allowed the suit to go forward by finding that:

the FTCA's discretionary-function exception does not provide a blanket immunity against tortious conduct that a plaintiff plausibly alleges also flouts a constitutional prescription.

The D.C. Circuit basically found that the OCC’s prosecutorial discretion didn’t count where it base based on a desire to retaliate against the bank office who reported them for acting like racists.  Normally, prosecutorial discretion is not at issue because malicious prosecution is a separately carved-out exception to the FTCA, but the OCC brought civil charges, not criminal charges. The OCC employees were acting in their official capacities, and the DC Circuit was basically saying that Congress didn’t enact the discretionary function exception to shield rogue bank examiners who were using their powers for a personal vendetta.

However, this same line of thought, that the discretionary function exception shouldn’t shield rogue operators goes out the window when prisoners are involved.

Courts are more likely, however, to shield the government in situations where negligence injures prisoners.  There are cases where prisoners were assaulted by guards transporting them, and where prisoners are injured or killed when negligently put in cells that are overcrowded or with other prisoners that the guards/warden know will assault the victim – even when it violates prison regulations.  The courts, then, will look to the exception for assaults or rule that wardens have discretion on where to house inmates.  If there is malice involved – a prison employee’s personal animus that causes they to knowingly injure the inmate or have the inmate injured – the courts will allow a Bivens-suit, for damages against the prison employee himself or herself, rather than against the government.

We are then left with traditional torts – car wrecks, medical malpractice, falling tree limbs in urban parks7 – that fit neatly within what congress intended for the FTCA, idiosyncratic egregious cases, and negligent undertakings.

The courts have allowed very narrow pathways in for idiosyncratic cases – when bank regulators who brought civil charges against a bank employee who complained that they had made racist comments, when a doctor at a government clinic sexually abused patients, and he had done same thing repeatedly before in other areas (prisons) that those who hired him knew about.8 

Negligent undertakings also present a pathway where the government actors’ conduct is by very specific regulations and the  negligent conduct of the government employees  was just as egregious as the conduct of the actor who directly caused the injury (Naval base employees who ignored domestic violence and child protection regulations resulting in the child of a servicemember being killed by his civilian wife on a military base).9


End Notes

1. 28 USC § 1346(b)

2. Whalen v. United States, 246 F. Supp. 3d 449, 454 (D.D.C 2017), citing Dalehite v. United States, 346 U.S. 15, 24-25, 73 S. Ct. 956, 97 L. Ed. 1427 (1953)

3. 28 USC § 2680

4. 28 U.S.C. § 2680(a)

5. Berkovitz, 486 U.S. at 536

6. Id. at 545

7. See Walen v. US, 246 F. Supp. 3d 449 (D.D.C 2017).

8. Brignac v. United States, 239 F. Supp. 3d 1367 (N.D. Ga. 2017)

9. Talia Williams v. US, No. 1:08-cv-437-ACK-BMK (D. Hawaii 2010)

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