Discretionary Disfunction and Shivers v. United States: Consequences of Assuming the Intent of Congress

Abstract

The discretionary function exception is a powerful departure from the Federal Tort Claims Act’s general waiver of sovereign immunity. This exception applies where government employees commit a tort while acting within the discretion of their position. While there has been a lengthy and varying jurisprudential history surrounding the application of the discretionary function exception, neither the Supreme Court nor Congress has addressed whether violations of constitutional rights fall within the scope of a discretionary act.
 This lack of clarity proved harmful for individuals like Mackie Shivers in Shivers v. United States because the discretionary function exception swallowed his claim for relief even though his Eighth Amendment rights were violated. This Note analyzes the error of that approach to constitutional claims and the discretionary function exception through the context of the Shivers decision and calls for an amendment to the exception clearly stating that violations of constitutional rights are not discretionary.