Academic journal article Northwestern University Law Review

Not Fully Discretionary: Incorporating a Factor-Based Standard into the Ftca's Discretionary Function Exception

Academic journal article Northwestern University Law Review

Not Fully Discretionary: Incorporating a Factor-Based Standard into the Ftca's Discretionary Function Exception

Article excerpt


The United States has enjoyed full sovereign immunity for much of its existence, during which time private citizens could not sue the federal government.1 This changed in 1946 when Congress passed the Federal Tort Claims Act (FTCA), which allowed private citizens to sue the federal government for tort damages. The text of the FTCA operated as a limited waiver of sovereign immunity, allowing citizens to sue the government "in the same manner and to the same extent as a private individual under like circumstances."2 In the seventy years since Congress passed the FTCA, the courts' imprecise and meandering interpretations of the statute have caused no small amount of trouble.

This Note considers the FTCA's discretionary function exception. The discretionary function exception exempts the government from liability for "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 [can] be abused."3 In other words, the government cannot be sued if it is performing a "discretionary" function. The word "discretionary" does not appear anywhere else in the text of the statute; this requires the courts to define exactly what constitutes a "discretionary function or duty." The language of the statute's discretionary function exception has remained surprisingly unchanged to the present day. This legislative silence is not helpful in clarifying the scope of the discretionary function exception.4

The Supreme Court has interpreted and reinterpreted the discretionary function exception since 1946, yet it has failed to provide a consistent standard.5 Since the core purpose of the Act is to provide an avenue for private citizens to seek recourse against the federal government, this vague exception to the FTCA poses a continuing risk of swallowing the rule entirely and shielding the government from all forms of liability. This would take all of the bite out of the Act. Moreover, the stakes are high: courts are balancing an important private right to sue the government for tort damages against an equally important sovereign immunity protecting vital government operations. With that much at stake, consistent and prudential judicial decisionmaking requires more concrete guidance than the Court's interpretations of "discretionary" to date. Thus, the Supreme Court should clarify the scope of the discretionary function exception by articulating a factor-based standard that draws from its prior precedent.

This Note proceeds in four parts. Part I describes the FTCA's text and legislative history. Part II then summarizes shifting judicial interpretations of the exception. Next, Part III examines the quixotic seven-decade attempt by scholarly literature to either delineate the meaning of the discretionary function exception or cure the exception's inherent ambiguity. Lastly, Part IV proposes a five-factor standard for the discretionary function exception that includes (1) whether the government employee exercised a choice, (2) whether the choice related to policy considerations, (3) whether the government employee's conduct, if performed by a private person, would violate state law, (4) practical concerns over inhibiting essential government functioning, and (5) a desire to minimize sovereign immunity and allow private citizens to sue the government for wrongful or negligent acts by its agents, officers, or employees. This standard provides a sturdy framework for future judicial application by combining the wisdom and consistency of precedent with cabining the exception to ensure that it does not swallow the rule.


The FTCA was born from a combination of a longstanding need to reform a burdensome private bill system and a freak accident on July 28, 1945, which began as a foggy Saturday morning in New York City. Shortly before 10:00 AM, a U.S. Army pilot flying a routine transport mission in a B-25 bomber ignored a low-visibility warning from air traffic control and flew the plane straight into the Empire State Building. …

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