Federal Discretionary Immunity
Making sense of the discretionary function
exception to the Federal Tort Claims Act
By Claire Choo
B
efore the Federal Tort Claims Act
(28 U.S.C. 1346) was enacted in
1946, the federal government en-
joyed sovereign immunity under common
law on the grounds that the king could do
no wrong. (See generally, 1 Blackstone,
Commentaries 238-39.) Jurisdiction over
any suit against the Government requires
a clear statement from the United States
waiving sovereign immunity, together
with a claim falling within the terms of the
waiver. (U.S. v. White Mountain Apache
Tribe (2003) 537 U.S. 465, 472 [inter-
nal citations omitted].) The Federal Tort
Claims Act is such a waiver it waives
sovereign immunity for injury, property
damage, personal injury or death caused by
the negligent or wrongful act or omission
of a federal government employee while
acting within the scope of employment,
under circumstances where the United
States, if a private person, would be liable
in accordance with state law.
As sweeping as it sounds, make no mis-
take the Federal Tort Claims Act is a very
limited waiver. Its limitations are apparent
when you see that the Federal Tort Claims
Act does not apply when the claim is based
upon the exercise or performance or the
failure to exercise or perform a discretion-
ary function or duty, whether or not the
Claire Choo is an attorney
at Danko Meredith located
in the San Francisco Bay
Area, where she represents
injured clients in catastrophic
personal injuries, mass tort
actions, and aviation cases.
www.dankolaw.com
20 FORUM January/February 2017 Consumer Attorneys Of California
discretion involved is abused. (28 U.S.C.
2680; Dalehite v. U.S. (1953) 346 U.S.
15, 36; U.S. v. Varig Airlines (1984) 467
U.S. 797, 819-20.) Commonly called the
discretionary function exception to the
Federal Tort Claims Act, the exception
is [g]rounded in separation of powers
concerns, and reflects Congresss 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. (Kennewick Irrigation Dist. v.
U.S. (9th Cir. 1989) 880 F.2d 1018, 1029
[quoting U.S. v. Varig Airlines, supra, 467
U.S. at 814].)
When does the exception apply? The
Supreme Court set forth a two-prong test
in Berkovitz v. U.S. that looks at:
1. whether the challenged action was a
discretionary one i.e., whether it was
a matter of judgment or choice for the
acting employee; and
2. whether the challenged action is of the
type Congress meant to protect i.e.,
whether the action involves a decision
susceptible to social, economic, or
political policy analysis.
(Berkovitz v. U.S. (1988) 486 U.S. 531,
536-537.) In the Ninth Circuit, the gov-
ernment bears the burden of proving both
prongs. (Prescott v. U.S. (9th Cir. 1992)
973 F.2d 696, 701-02; cf. Freeman v. U.S.
(5th Cir. 2009) 556 F.3d 326, 334 [plaintiff
bears burden of proving the discretion-
ary function exception does not apply].)
However, in practice, the government only
needs to make an initial showing that the
discretionary function exception applies
and the burden shifts to plaintiff to show
that the discretionary function does not
apply. With that in mind, there are various
avenues to defeat the discretionary func-
tion exception.
Prong One Was there a
judgment, choice, or decision?
The first prong looks at the governmental
conduct at issue and whether that conduct
was discretionary. Essentially, if the chal-
lenged conduct was subject to a mandatory
statute, policy, or regulation, the action is
not discretionary. Because the mandatory
statute, policy, or regulation prescribes
specific action by the government em-
ployee, the employee does not have any
option but to follow the prescription and
no room is left for discretion. Thus, the
discretionary function exception does
not apply.
The Federal Tort Claims
Act is a very limited
waiver.
Berkovitz v. U.S. is an example defeating
the discretionary function exception by the
first prong. In Berkovitz, the plaintiff sued
the federal government on behalf of his
two-month-old son who contracted polio
after taking an oral polio vaccine. The
Supreme Court found that if the National
Health Institutes Division of Biologic
Standards had licensed the pharmaceuti-
cal company to manufacture the vaccine
without first determining the vaccines
compliance with the regulatory standards,
the discretionary function exception did
not apply because the licensing was in
contravention of the statute that required

the Division to determine compliance be-
fore issuing a license. (Berkovitz v. U.S.,
supra, 486 U.S. at 544.) The court also
found that although the regulatory scheme
regarding vaccine lots allowed the FDA to
determine how to test lots, the FDA had a
self-imposed policy of testing all vaccine
lots for compliance with safety standards
and plaintiffs allegation that the FDA
knowingly approved a non-complying lot
was sufficient to defeat the discretionary
function exception. (Id. at 548.)
Identifying the mandatory statute, pol-
icy, or regulation that was violated is the
silver bullet for defeating the discretion-
ary function exception.
Prong Two What is the social,
economic, or political policy that
drives that decision?
If there is no mandatory statute, policy,
or regulation that was violated, the action
is deemed discretionary. However, the
analysis does not end there. Even if the
challenged conduct involves some ele-
ment of judgment, there is still a question
of whether that judgment is of the kind
that the discretionary function exception
was designed to shield. The discretionary
function exception protects only gov-
ernmental actions and decisions based
on considerations of public policy, i.e.
whether the action involves a decision
grounded in social, economic, or political
policy analysis. (Berkovitz v. U.S., supra,
486 U.S. at 537.) The action need only be
susceptible to policy analysis regarding
social, economic or political concerns; the
government is not required to show that a
policy analysis was actually undertaken or
Consumer Attorneys Of California January/February 2017 FORUM 21
Identifying the mandatory
statute, policy, or
regulation that was
violated is the silver
bullet for defeating the
discretionary function
exception.
rchi
Wa
that the conduct was the end product of a
policy-driven analysis. (U.S. v. Gaubert
(1991) 499 U.S. 315, 325; also Miller v.
U.S. (9th Cir. 1998) 163 F.3d 591, 593
[the action or conduct need not be actu-
ally grounded in policy considerations,
but must be, by its nature, susceptible to
a policy analysis.].)
Because of the extremely broad nature
of the second prong, this area of case law
has produced some contrary results. For
example, in two Federal Tort Claims Act
cases involving the decisions of inspec-
tions from the Mine Safety and Health
Administration, the Fourth and Sixth Cir-
cuits came to directly conflicting results.
(Cf., Bernaldes v. U.S. (4th Cir. 1996) 81
F.3d 428 and Myers v. U.S. (6th Cir. 1994)
17 F.3d 890.) In both cases, mine workers
were killed in accidents due to the alleged
negligent inspection of the mines. Bernal-
des alleged the inspector failed to discover
safety violations with respect to railings
and safety harnesses and inadequate light-
ing. Myers alleged that inspectors failed
to discover the alleged unsafe conditions
that lead to an explosion. In Bernaldes, the
Fourth Circuit held that because the mining
inspectors had discretion under the regula-
tions to determine whether a mine com-
plies with the regulations, the discretionary
function exception applied. (Bernaldes v.
U.S., supra, 81 F.3d at 429.) The Fourth
Circuit determined that because the em-
ployee had to make a decision about the
compliance of the mine, that decision was
presumptively grounded in policy. (Id.) In
Myers, the Sixth Circuit acknowledged
that while mine inspectors had discre-
tion in making safety determinations,
those determinations were not grounded
on social, economic, or political policy
because the determinations were based
on objective safety principles. (Myers v.
U.S., supra, 17 F.3d at 897.) Thus, the
discretionary function exception did not
apply in Myers.
Despite the overbreadth and confusion
in the case law regarding the second prong,
these are generally the types of cases in the
Ninth Circuit that fail the second prong
because the failures were not susceptible
to policy determinations:
Failure to warn where there is no contrary
policy
Failure to warn of a known hazard was
not policy-based, where there was no
evidence of a contrary policy. (Oberson
v. U.S. Dept. of Agriculture, Forest Ser-
vices (9th Cir. 2008) 514 F.3d 989, 998.
[Forest Services offered no evidence to
show that the failure to post a warning
was the result of a policy decision.])
Failure to warn of existing diving haz-
ards in a national park where there was
a specific policy to post such warnings
and no other competing policy basis.
(Faber v. U.S. (9th Cir. 1995) 56 F.3d
1122, 1125-27.) [T]he use of the dis-
cretionary function exception must be
limited to those unusual situations where
the government was required to engage
in broad, policy-making activities or to
consider unique social, economic, and
political circumstances in the course of
making judgments related to safety.
(Id. at 1125.)
Failure to warn of dangerous hot coals
was a departure of established safety
policies. (Summers v. U.S. (9th Cir.
1990) 905 F.2d 1212, 1215 [there was
 no evidence that NPSs failure to post
warnings was the result of a decision
reflecting competing policy consider-
ations].)
Failure to act despite known or obvious
hazard
Failure to safely maintain military base
parking lot of unplowed ice did not have
policy implications. (Bolt v. U.S. (9th
Cir. 2007) 509 F.3d 1028, 1033-35.)
Failure to maintain irrigation system
where government was aware that rou-
tine maintenance was not being con-
ducted. (OToole v. U.S. (9th Cir. 2002)
295 F.3d 1029, 1036.)
Ignoring reports and complaints about
unsafe conditions in the meat depart-
ment in a naval commissary had no
policy implications. (Whisnant v. U.S.
(9th Cir. 2005) 400 F.3d 1177, 1185.)
Decisions requiring the use of objective
standards
The choice of how much dynamite to
use in the project is governed by ob-
jective standards and not shielded by
22 FORUM January/February 2017 Consumer Attorneys Of California
the discretionary function exception
because the judgment is not one rooted
in social, economic, or political policy.
The governments design of an irrigation
canal is protected by the discretionary
function exception because design de-
cisions consider the construction costs
and the publics ability to pay for those
costs. (Kennewick Irrigation Dist. v.
U.S., supra, 880 F.2d at 1028.) However,
the governments failure to remove un-
suitable materials during construction
of the canal were not based on policy
judgment but based on technical, sci-
entific, engineering considerations and
thus, these decisions were not shielded
by the discretionary function exception.
(Id. at 1031.)
Procedural considerations and
practice tips
There are a few other things that plain-
tiffs should be aware of in navigating
the discretionary function exception to
the Federal Tort Claims Act. Once it is
determined that the discretionary function
exception applies, issues of negligence
are irrelevant to the discretionary func-
tion inquiry. (Kennewick Irrigation Dist.
v. U.S., supra, at 1029.) The choice or
decision made by the government actor
may have been obviously negligent but
the negligent conduct is protected by the
discretionary function exception. Again,
this is grounded in the idea that the judi-
ciary should not be second-guessing the
decisions of the legislative and executive
branches of government. Thus, the excep-
tion shields the government from liability
even if the discretion is abused.
Another consideration is that although
the discretionary function exception looks
like an affirmative defense, it is, in fact, a
jurisdictional question. The federal court
does not have jurisdiction over a Federal
Tort Claims Act case if the alleged con-
duct falls within the discretionary func-
tion exception. (GATX/Airlog Co v. U.S.
(9th Cir. 2002) 286 F.3d 1168, 1173.) This
means the issue can be raised at any time.
So the issue can be brought very early
under Federal Rule of Civil Procedure
12(b)(1) as a motion to dismiss, even
when there are facts in dispute. The dis-
puted facts can be resolved by the court.
(St. Clair v. City of Chico (9th Cir. 1989)
880 F.2d 199, 201.)
Essentially, to defeat the discretionary
function exception to the Federal Tort
Claims Act, you should find a mandatory
statute, policy, or regulation that governs
the conduct at issue. Discovery seeking
information on all applicable federal poli-
cies, guidelines, regulations, directives,
and rules should be conducted early on
to fend off the Rule 12(b)(1) motion to
dismiss. If there is no mandatory stat-
ute, policy, or regulation, the allegations
should be framed in such a way that the
decision or choice made leading to the
offending conduct is not susceptible to a
policy analysis. This can be done by: (1)
arguing that in the choice between the safe
option and the chosen option, there was
no contrary policy that precluded the gov-
ernment from choosing the safer option;
(2) there was a known and obvious hazard
in the face of which the government had
the power to act on and no policy implica-
tions for not acting can be demonstrated;
or (3) the decision was made or should
have been made according to some other
objective standard, such as a technical,
scientific, or engineering standard. n