Giving Direction to Discretion

Abstract

The common law established the doctrine of sovereign immunity whereby the government is not civilly liable for its misdeeds. The Supreme Court in 1821 adopted the doctrine for lawsuits against the United States. Legislatures can abrogate sovereign immunity. To a greater or lesser extent, all jurisdictions have done so in the United States. Congress enacted the Federal Tort Claims Act (FTCA) in 1946 to impose liability against the federal government for acts of negligence, as determined by the law of the place where the act or omission occurred. However, a major exception in the FTCA exists for the performance of functions, i.e. when the government employee is engaged in an act of discretion. Congress though did not define discretion, which has left the statutory interpretation of a highly ambiguous phrase to the courts. Led by a series of Supreme Court decisions, many federal courts have defined the exception broadly, such that immunity is favored at the expense of safety and liability. Often even mundane acts of negligence are held to be acts of discretion. Cases finding discretion exceed those imposing liability. Attempting to draw a line between discretionary and non-discretionary acts often leads the courts to seemingly inexplicable distinctions. Significantly, the analysis of negligence does not arise until the issue of discretion is resolved. This article looks at how the discretionary functions exception plays out, especially with the public lands (Roughly 1/3 of the nation's lands are held by the federal government) and in government inspections. A series of cases led by the Ninth Circuit, and followed to some extent by the District of Columbia, Third, Eighth, and Tenth Circuits, read a much more restrictive interpretation into the discretionary functions exception, thereby favoring liability and promoting safety. These cases first look at the act to determine if it is of the nature to be protected as discretionary - that is, grounded in social, economic, or political policy considerations. Even if the decision is a protected discretionary design, discretion is not involved in construction or maintenance. Nor can it be implemented in violation of objective safety or technical standards or building codes.