The Discretionary Function Exception to the Federal Tort Claims Act: A Proposal for a Workable Analysis

By Hyer, Andrew | Brigham Young University Law Review, January 1, 2007 | Go to article overview

The Discretionary Function Exception to the Federal Tort Claims Act: A Proposal for a Workable Analysis


Hyer, Andrew, Brigham Young University Law Review


I. INTRODUCTION

In 1946 Congress enacted the Federal Tort Claims Act (FTCA), which provides that the federal government can be held liable in tort "in the same manner and to the same extent as a private individual under like circumstances."1 In enacting the FTCA, Congress also provided thirteen exceptions to this baseline rule.2 The most litigated,3 and one of the broadest4 of these statutory exceptions, is the discretionary function exception.5 The Supreme Court created the current test for the applicability of the discretionary function exception in 1991 in United States v. Gaubert.6 The Gaubert Court's test created a "strong presumption" that the discretionary function exception applies where the governmental official has discretion to act and the action is "susceptible to policy analysis."7 Although the Gaubert presumption has remained the law for seventeen years, it has been consistently decried by commentators as applying the discretionary function exception too broadly and in effect swallowing the purpose of the FTCA.8 Accordingly, various commentators have proffered a number of proposals on how to refine and narrow the application of the exception.9 Similarly, several recent Ninth Circuit decisions reveal judicial attempts to chip away at the Gaubert "presumption" and thus narrow the exception's applicability.10

This Comment will discuss and compare the Ninth Circuit's recent approach to the discretionary function exception with both a stricter application of the Supreme Court's test in Gaubert and alternatives advocated by commentators. In so doing, this analysis will illustrate that in addition to applying the discretionary function exception too broadly, the Court's current approach under Gaubert also creates an undesirable incentive for governmental agencies to establish ineffective regulations in order to avoid FTCA liability. Further, this Comment shows that neither the Ninth Circuit's approach nor proposed scholarly alternatives present solutions that are both workable for courts and able to remove the incentive for agencies to regulate ineffectively.

Identifying the problems created by both the Court's current approach and other alternative approaches, this Comment proposes a novel analytical approach based upon recognition of the incentives the discretionary function exception creates for agencies in drafting policies. In applying this proposed "incentive recognition" approach, a court would undergo a two-step analysis. First, the court would determine whether the discretionary decision was made through a legislative or administrative process. If so, the exception applies; if not, the court would move to the second step to determine whether: (1) the official taking the action was affirmatively delegated the authority to use discretion in considering specific policy factors; (2) before taking the action, the official had received training such that she was aware of the policy factors she was to consider; and (3) at the time of the action, the official had access to information to make such a policy-based decision. If the government can show that these three criteria are met under the second step, there is a rebuttable presumption that the discretionary function exception applies. This proposed "incentive recognition" approach would narrow the scope of the discretionary function exception and avoid encouraging agency policymakers to enact inefficient policies and regulations to avoid liability exposure. The result is a discretionary function analysis that is more attuned to Congress's purpose in enacting the discretionary function exception and the FTCA as a whole.

Part II provides an overview of the context surrounding the passage of the FTCA, Congress's intent in enacting the discretionary function exception, and the Supreme Court decisions dealing with the exception prior to Gaubert. Part III provides a general overview of the Gaubert decision and reactions to Gaubert by scholarly commentators. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Discretionary Function Exception to the Federal Tort Claims Act: A Proposal for a Workable Analysis
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.