Discretionary Function Immunity

In the past, I have written about some of the immunities given to state and local governmental entities under the Government Claims Act. This month, I wanted to touch on the main immunity for the federal government – the discretionary function exception to the Federal Tort Claims Act (28 U.S.C. § 2680(a).) This is a broad immunity, and is the one plaintiff’s attorneys are most likely to encounter.

The main issue in applying the discretionary function exception (like its state law counterpart at Government Code § 820.2), is its potential sweeping breadth. Basically everything involves some aspect of discretion, so courts have struggled with placing appropriate limitations on the reach of the exception while still preserving what they believe to be its intent. Which makes life difficult for the practitioner, since it is frequently impossible to predict how a court will rule on a given fact pattern. But the courts have at least given some guidance, which I will discuss below.

The discretionary function exception precludes tort liability for “[a]ny claim based upon an act or omission of an employee of the Government … based upon … a discretionary function or duty….” 28 U.S.C. § 2680(a). The exception reflects Congressʹs “wish[ ] to prevent judicial ‘second‐guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 814 (1984). In other words, “if judicial review would encroach upon th[e] type of balancing done by an agency, then the [discretionary function] exception” applies. Begay v. United States, 768 F.2d 1059, 1064 (9th Cir.1985).

The Supreme Court has fashioned a two‐part test for determining whether particular claims are barred by the discretionary function exception. Courts must determine if: (1) the challenged conduct involves a discretionary act—that is, that the conduct “involves an element of judgment or choice”—and (2) if so, whether that judgment or choice implicates public policy—that is, that the decision is “grounded in social, economic, and political policy.” Berkovitz v. United States, 486 U.S. 531, 536–37 (1988). Only if both prongs are satisfied does the exception serve as a bar to claims under the FTCA.

The first prong of the discretionary function exception protects “acts that are discretionary in nature, acts that ‘involv [e] an element of judgment or choice.“ United States v. Gaubert, 499 U.S. 315, 322 (1991). “[I]it is the nature of the conduct, rather than the status of the actor that governs whether the exception applies.” Id. Thus, the exception does not apply “if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, ”because the employee has no rightful option but to adhere to the directive.“ Id. (internal quotation marks omitted.)

As a practical matter, plaintiffs will rarely ever prevail on this prong. There are fairly few situations where a statute or regulation mandates an exact course of conduct for a federal employee and no discretion is allowed.

The second prong of the discretionary function test asks whether the employee’s judgment “is of the kind that the discretionary function exception was designed to shield.“ United States v. Gaubert, 499 U.S. 315, 322–23 (internal quotation marks omitted.) “Because the purpose of the exception is to ‘prevent judicial ‘second‐guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort,ʹ when properly construed, the exception ‘protects only governmental actions and decisions based on considerations of public policy.’ “ Id. at 323.

The boundary between decisions “based on considerations of public policy” and those that aren’t is not always easy to draw. At one end of the spectrum are those decisions totally divorced from policy analysis. For example, a government official who drives negligently, causing an accident, cannot be said to have exercised judgment in a way related to public policy. OʹToole v. United States, supra, 295 F.3d 1029, 1035. “Although driving requires the constant exercise of discretion, the officialʹs decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.” Gaubert, 499 U.S. at 325 n. 7. As noted by the court, “[t]he ‘discretion’ exercised by the negligent government driver is just not the kind of decisionmaking the discretionary function exception protects.” O’Toole at p. 1035.

At the other extreme are those agency actions fully grounded in regulatory policy. Examples include regulation and oversight of Savings and Loans by the Federal Home Loan Bank Board (see Gaubert, 499 U.S. at 332‐34); the release of vaccine lots by the Bureau of Biologics of the Food and Drug Administration (see Berkovitz, 486 U.S. at 545‐48); and the enforcement and implementation of airline safety standards by the Federal Aeronautics Agency (see Varig, 467 U.S. at 814‐20).

The Ninth Circuit has explained that for this prong, it is critical to distinguish between matters of design and those of implementation. “[W]e have generally held that the design of a course of governmental action is shielded by the discretionary function exception, whereas the implementation of that course of action is not.” Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005). The court also cautioned that “matters of scientific and professional judgment‐particularly judgments concerning safety‐are rarely considered to be susceptible to social, economic, or political policy.” Id. Stated another way, once the Government has undertaken responsibility for the safety of an event, the execution of that responsibility is not subject to the discretionary function exception. Marlys Bear Medicine v. U.S. ex rel. Secretary of Dept. of Interior, 241 F.3d 1208, 1215 (9th Cir. 2001). “The decision to adopt safety precautions may be based in policy considerations, but the implementation of those precautions is not.” Id.

A good example of this distinction can be found in Fang v. United States, 140 F.3d 1238 (9th Cir. 1998). In that case, the court held that the negligence of park service emergency medical technicians in failing to stabilize the spine of someone involved in a serious automobile accident was not protected by the discretionary function exception. Id. at 1243. The defendants in Fang argued that the decisions made by the responders to the accident scene were the product of judgment driven by the consideration of competing policy‐based choices. The court disagreed. “No social, economic, or political policy is implicated in the decision whether to stabilize the spine of a person who may have suffered a head, neck or back injury prior to treatment.” Id. at 1243. Instead, the court indicated, it “is simply an ordinary judgment made by EMTs in applying their training and expertise to an emergency situation.” Id. As such, the discretionary function exception did not apply.

A similar holding was made in Carcamo‐Lopez v. Does, supra, 2011 WL 3880942. Carcamo‐ Lopez. In Carcamo‐Lopez the Border Patrol agent inadvertently backed over the plaintiff with his vehicle while he was investigating a suspected illegal border crossing. Id. at *2. When the agent realized the plaintiff was unable to move, he forcibly lifted her into his vehicle, exacerbating her injuries. Id. In the ensuing lawsuit, the Border Patrol argued that Border Patrol agents have broad discretion in deciding how to seek or administer medical care, and therefore the agent’s actions were protected. Id. at *14. Relying on Fang and comparing the Border Patrol agent’s negligence to that of the hypothetical negligent government driver, the court in Carcamo‐Lopez held the discretionary function exception inapplicable. Id. at 16‐18. Noting that the agent “did not have to weigh the allocation of scarce resources, nor was he confronted with a broad emergency situation in which he needed to balance Plaintiff’s needs against those of countless others he needed to rescue,…” the court determined that the agent’s negligence was not the product of policy judgments protected by the discretionary function exception. Id.

This reasoning is reflected in many other decisions as well. See, e.g., Marlys Bear Medicine v. U.S. ex rel. Secretary of Dept. of Interior, supra [negligence by Bureau of Indian Affairs in supervising and managing safety of logging operation not policy‐based so as to warrant protection by discretionary function exception]; Gotha v. United States, 115 F.3d 176, 181 (3d Cir. 1997) [negligence in failing to maintain pathway on Navy base “about as far removed from the policies applicable to the Navy’s mission as it is possible to get”]; and Routh v. United States, 941 F.2d 853, 856 (9th Cir. 1991) [government contracting officer’s negligence in allowing contractor to operate a backhoe without a safety device was not a policy decision protected by the discretionary function test].

Compare those cases with ones coming out the other way: Miller v. U.S., 163 F.3d 591 (9th Cir. 1998) [deciding how to allocate government resources to fight multiple fastmoving fires]; Williams v. U.S., 314 Fed.Appx. 253 (11th Cir 2009) [preventing the escape of a fleeing suspect]; Johnson v. United States, 949 F.2d 332 (10th Cir. 1992) and Kiehn v. United States, 984 F.2d 1100 (10th Cir. 1993) [discretionary decisions made by federal personnel engaged in search and rescue operations]. Miller, Johnson, and Kiehn all concern the design of a course of action for governmental employees, which is protected by the discretionary function exception. Whisnant v. United States, supra, 400 F.3d at p. 1181. And Williams dealt not only with decisions as to the proper course of action, but also involved a quickly unfolding emergency situation.

The comparison shows the design/implementation distinction to generally hold, but in some ways it is just a substitution of one generalization for another. But that is the nature of the immunity. The lesson: use discretion in selecting which cases against the United States to take.