The Federal Tort Claim Act and the discretionary function exception

The act seeks to avoid placing co­urts in the position of second-guessing the government; it is not intended to protect the Government from liability for violating its own safety mandates

2017 December

Congress enacted the Federal Tort Claim Act, 28 U.S.C. § 1346, a waiver of sovereign immunity, to provide remedies to individuals harmed by government negligence. (Throughout this article, all statutory references are to Title 28 of the United States Code. As a remedial statute, the FTCA is to be construed liberally, and its exceptions should be read narrowly. (O’Toole v. United States (9th Cir. 2002) 295 F.3d 1029, 1037.) Section 1346(b)(1) authorizes civil actions against the Government for damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Section 2674, places the Government in the same position as a private person for purposes of tort liability. It says, “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . .”

The principal exceptions to the Government’s waiver of sovereign immunity are in Section 2680. One of the most common is the discretionary function exception, section 2680(a). This statute exempts the Government from liability for “[a]ny claim . . . based upon the exercise or performance or 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 be abused.”

Discretionary function immunity is an affirmative defense, with the burden of proof upon the Government to show that it was exercising a discretionary function when it acted or failed to act. (Whisnant v. United States (9th Cir. 2005) 400 F.3d 1177, 1181.)

Discretionary function immunity

The purpose of the discretionary function immunity is to avoid placing courts in the position of second-guessing the Government’s social, economic and political decisions; it is not to protect the Government from liability for violating its own safety mandates.

In United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) (1984) 467 U.S. 797, 104 S.Ct. 2755, two airlines and families of passengers who died in crashes sued the United States, claiming that the Federal Aviation Administration was negligent in issuing a safety certificate for the planes that crashed. The airline and passengers claimed that the equipment did not satisfy applicable safety regulations and, therefore, the FAA was negligent in issuing a supplemental safety certificate for an airplane.

Varig Airlines explained that Congress enacted a multistep certification process to monitor the aviation industry’s compliance with the comprehensive set of safety regulations that delineate the safety standards for commercial aircraft. The FAA must approve a new airplane’s basic design, review drawings, make inspections, monitor tests, study test data, authorize production of aircraft, and investigate whether the manufacturer can maintain quality control. With so much responsibility, and only 400 engineers to conduct the investigations and reviews, and the impossibility of reviewing the thousands of drawings and data that manufacturers must submit, the FAA developed a system of compliance review that involves “spot checking” the manufacturer’s work.

Turning to the purpose of the discretionary function exception, Varig Airlines cautioned that this exception was designed to prevent courts from second-guessing policymakers.

First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case. . . . Thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee – whatever his or her rank – are of the nature and quality that Congress intended to shield from tort liability.

Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals. . . . This emphasis upon protection for regulatory activities suggests an underlying basis for the inclusion of an exception for discretionary functions in the Act: Congress wished 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.

Varig Airlines, 467 U.S. at 813-814, 104 S.Ct. at 2764-2765

The Supreme Court held that the discretionary function exception applied to the FAA’s decision to use spot-checking best accommodates the goal of air transportation safety and the reality of finite agency resources. “Judicial intervention in such decisionmaking through private tort suits would require the courts to second-guess the political, social, and economic judgments of an agency exercising its regulatory function.” (Varig Airlines, 467 U.S. at 819-820, 104 S.Ct. at 2767-2768; see also United States v. Gaubert, (1991) 499 U.S. 315, 328-332, 111 S.Ct. 1267, 1277-1279 [whether Federal Home Loan Bank Board should intervene in saving and loan associations’ operations fell within the discretionary-function exception to liability, because decision they involved judgment of when and how to become involved in an institution’s affairs]; Gonzalez v. United States (9th Cir. 2016) 814 F.3d 1022 [whether FBI should have shared information with local law enforcement about possible attack and home invasion is decision within discretionary function exception]; Chadd v. United States (9th Cir. 2015) 794 F.3d 1104 [Park Service’s decision to use non-lethal means to manage mountain goat with known aggressive behavior, who killed hiker, protected under discretionary function exception], but see Kleinfeld, J., dissenting [formal park policy was to protect the public from dangerous animals, and decision not to kill 370-pound aggressive goat was not within exception].)

Not all Government decisions, however, are “political, social or economic” judgments. Berkovitz v. United States, (1988) 486 U.S. 531, 108 S.Ct. 1954, held that the discretionary function exception does not bar liability against the National Institutes of Health based on a theory that it licensed a polio vaccine without first receiving safety data from the manufacturer, as required by statute. Because regulations require the FDA to test all lots of a vaccine before they are authorized for release to the patients, a claim that the FDA failed to test the lot that injured that plaintiff is not barred by the discretionary function exception.

Berkovitz articulated a two-part test to determine whether the discretionary function exception applies. First, the courts examine whether there is a choice to be made. ၁In examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; it cannot be discretionary unless it involves an element of judgment or choice.” (Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958.) “The discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment.” (Berkovitz, 486 U.S. at 539, 108 S.Ct. at 1960.)

Second, even if the Government’s conduct involved some element of choice, the discretionary function exception applies only if it was the type of decision that Congress wanted to protect. Not all decisions fall into that category. As Berkovitz explained, citing Varig Airlines, the basis for the exception is to prevent judicial second-guessing of social, economic or political decisions. “The exception, properly construed, therefore protects only governmental actions and decisions based on consideration of public policy.” (Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959.)

The decision to adopt a policy and the decision not to implement it are two different things

The decision to adopt a safety policy is a discretionary function, its implementation is not. In Maryls Bear Medicine v. United States (9th Cir. 2000) 241 F.3d 1208, a member of an Indian tribe was killed when a tree fell on him at a logging site on a reservation. The contract between the logging company and the tribe, authorized by the Bureau of Indian Affairs, reserved for the agency the right to inspect and suspend the logging operation if it failed to comply with the contract, which in turn required it to conduct operations in compliance with safety practices and federal law. The worker’s family filed an action for wrongful death under the FTCA, contending that the BIA was negligent in supervising and managing the safety aspects of the logging company’s operations.

The court rejected the Government’s contention that safety monitoring is discretionary function. A “failure to effectuate policy choices already made will not be protected under the discretionary function exception.” (Id., 241 F.3d at 1215, emphasis added.)

[W]e have generally held that once the Government has undertaken responsibility for the safety of a project, the execution of that responsibility is not subject to the discretionary function exception. The decision to adopt safety precautions may be based in policy considerations, but the implementation of those precautions is not. (Maryls Bear Medicine, 241 F.3d at 1215, emphasis added.)

Disregarding a mandate is not a “discretionary function”

When the Government has acted contrary to mandate or directive, imposing liability does not require a court to second-guess legislative and administrative decisions grounded in social, economic or political policy. “When a suit charges an agency with failing to act in accord with a specific mandatory directive, the discretionary function exception does not apply.” (Berkovitz, 486 U.S. at 544, 108 S.Ct. at 1963.)

In Faber v. United States (9th Cir. 1995) 56 F.3d 1122, the Forest Service recognized in May 1986 that there were many injuries resulting from diving accidents at a waterfall. The Forest Service developed a Management Plan for a park in June 1986, which mandated several actions, including “develop a sign plan.” Five years later, the Forest Service had failed to add any new signs in the area of the waterfalls. In 1991, the plaintiff dove off ledge at the top of the waterfall, unaware of the danger of shallow water. He struck his head and became a quadriplegic. The Government contended that its failure to post the warning signs fell within the discretionary function exception to FTCA liability.

This Court rejected the Government’s reliance upon the discretionary function exception. The Forest Service failed to follow specifically prescribed policies that required implementation of specific safety measures, including development of a sign plan to warn the public about a known safety hazard. The Forest Service ၁was required to follow safety programs promulgated specifically to regulate the use of the Tanque Verde Falls. . . . Hence, these park-specific programs were among the federal statutes, regulations, and policies that limited the Forest Service’s discretion in managing the Falls.” (Id., 56 F.3d at 1126.)

Despite its knowledge of the specific safety hazards associated with diving at the Falls, and despite the unambiguous safety program established in response to these hazards, the Forest Service failed to provide any warnings not to dive from the Falls. It is undisputed that from 1985 through the time of Faber’s accident in 1991, the Forest Service failed to put up any new signs to warn of specific hazards. . . .

The Forest Service had no choice but to follow the June 1986 site management plan. . . . The plan did not give the Forest Service the option to do nothing in response to the new hazards enumerated in the May 1986 site management plan. . . . Because the challenged conduct of the Forest Service was in direct contravention of a specifically prescribed federal policy, the discretionary function exception does not apply. (Id., 56 F.3d at 1126, emphasis added.)

In Navarette v. United States (9th Cir. 2007) 500 F.3d 914, the plaintiff fell off a cliff while walking along a path at night in a campground operated by the Army. The path led right to the edge of the cliff. There were neither warnings that the path ended nor safety precautions to prevent hikers from walking over the cliff at night. An Army “Safety Plan” for the campgrounds included the instruction that, “dangerous terrain conditions, such as drop-offs, etc., will be properly marked or fenced.” The Government contended that it was protected by the discretionary function exception.

Navarrette held that the Safety Plan created specific and mandatory duties to provide fencing and signs. The appellate court rejected the Government’s argument that general guidelines about safety and comfort in other documents (the Army’s Engineering Manual) transformed the Safety Plan’s specific requirements into discretionary ones:

First the [Engineering] Manual generally provides that fencing and signs be limited to those places where necessary. . . . But the Safety Plan expressly places drop-offs and other dangerous terrain in that “necessary” category. Second, the Army Corps certainly retained discretion as to how to mark or fence drop-offs, but that does not mean it retained discretion whether to do so. . . . When Navarette fell of the cliff, however, the government had not warned campers about the drop off in any way. (Id., 500 F.3d at 917-918, emphasis added.)

Navarette relied upon Soldano v. United States (9th Cir. 2006) 453 F.3d 1140, a case in which the Government failed to set a proper speed limit on a National Park road. A motorcyclist traveling at the 35-miles-per-hour speed limit came around a blind curve with insufficient time to halt for a van that was stopped in his lane. The standards for speed limits required a sight distance of at least 225 feet for travel at 35 miles per hour. The blind curve had a sight distance of only 180 feet and, according to the standards, should have been set for a 25-miles-per-hour speed limit. The plaintiff filed an FTCA action, alleging negligent design of the road and negligently setting the speed limit 35 miles per hour.

The Ninth Circuit agreed that setting a safe speed limit is not a social, economic or political judgment, so the discretionary function exception was inapplicable. The specific standard for an appropriate speed requires 225 feet for stopping distance if the speed limit is 35 miles per hour. The park’s road did not meet that standard and the decision to ignore the standard did not meet the test for discretionary function protection.

We have generally held that the design of a course of government action is shielded by the discretionary function exception, whereas the implementation of that course is not. . . . The element of choice involved in the Park Service’s decision not to implement a speed limit on the Road consistent with the Standards’ safety guidelines resembles more a departure from the safety considerations established in Service policies . . . . (Soldano, 453 F.3d at 1148, third emphasis added).

Soldano rejected the Government’s contention that the standards permitted some design flexibility to allow for the unique purpose of park roads (they are not designed for efficient transportation; they are designed to enhance the park visitor’s experience). “Even granting that the government is correct that the Standards are inapplicable to the road’s design, it does not follow that the Standards’ basic, scientific safety specifications may be disregarded, particularly those that do not require redesigning or reconstructing the Road.” (Soldano, 453 F.3d at 1150, emphasis in original.)

In Soldano, the plaintiff contended in part that the Government negligently designed the road by omitting warning signs about the blind curve. On that narrow point, the appellate court noted that there was no mandate to erect such signs. On the question of whether the Government is liable for failure to set a proper speed limit, however, the appellate court held that it could be held liable. There is a mandated standard for speed limit when sight distance is limited.

General statements about the need for protective measures or warnings will not be enough to defeat the discretionary function affirmative defense. In Valdez v. United States (9th Cir. 1987) 56 F.3d 1177, and Childers v. United States (9th Cir. 1994) 40 F.3d 973, for example, the Ninth Circuit held that a National Park Services written policy outlined, in only general terms, the need to use guarding, signing or other forms of education to warn of hazards in a park. In Valdez, there were no specific requirements for signs in any particular area. Thus, concluded Valdez, the Government’s decisions not to post warning signs about dangers on a hiking trail, or to erect guardrails, were protected under Section 2680(a). In Childers, there were no regulations or guidelines that required the Park Service to place warnings along a trail, so how to balance access to trails, warnings or closures of parts of the park fell within the discretionary function exception of the FTCA.

Blackburn v. United States (9th Cir. 1996) 100 F.3d 1426, similarly held that the discretionary function exception applied to bar a claim for negligence for failure to warn about diving off of a bridge because the statutes and policy manuals “outline[d] general policy goals regarding visitor safety, [and did] not set out the specific means by which the NPS employees are to meet these general goals.” (Blackburn, 100 F.3d at 1431.)

In Whisnant, supra, the plaintiff was injured by consuming meat provided by a Government commissary that developed a toxic mold in its meat department over several years. Government regulations required periodic safety inspections, but did not specify when they should be conducted. This Court held that the discretionary function exception did not protect the Government from liability for negligent maintenance of the commissary.

A review of circuit precedent reveals two trends in the law that bear particularly on Whisnant’s case. First, a dominant theme in our case law is the need to distinguish between design and implementation: we 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. Second, and relatedly, matters of scientific and professional judgment, particularly judgments concerning safety are rarely considered to be susceptible to social, economic, or political policy. (Whisnant, 400 F.3d at 1181, third emphasis added.)

Even if there was choice, disregard of safety directives is not the type of decision that Congress wants to protect

In O’Toole, supra, the plaintiffs sought recovery for damage to their property based on the Government’s failure to maintain an irrigation ditch. There was no specific federal statute, regulation or policy that prescribed a course of action for maintaining the ditch. The Bureau of Indian Affairs’ irrigation-repair decisions were the product of choice and, thus, protected by the first part of the discretionary function test. (O’Toole, 295 F.3d at 1034-1035.)

The second test – whether maintenance and repair was susceptible to a policy analysis grounded in social, economic, or political concerns – yielded a different result. This Court rejected the Government’s contention that its decision to neglect the ditch was protected as a discretionary function. “We hold that an agency’s decision to forego, for fiscal reasons, the routine maintenance of its property maintenance that would be expected of any other landowner is not the kind of policy decision that the discretionary function exception protects. Because the BIA advances no other reason for its actions or inactions aside from the choice to spend its limited funds in other ways, the discretionary function exception does not apply.” (O’Toole, 295 F.3d at 1036.)

Terbush v. United States (9th Cir. 2008) 516 F.3d 1125, also illustrates the distinction between protected and unprotected decision-making. In Terbush, a mountain climber fell to his death in a national park. His family sued under FTCA for negligence in design, construction and maintenance of a wastewater management system that allegedly exacerbated natural exfoliation of a rock face, creating an unforeseeable hazard for climbers. Terbush held, with regard to design and construction of the system, the discretionary function exception applied because “various NPS policies do not contain mandatory and specific directives to which the NPS had no rightful option but to adhere.” (Terbush, 516 F.3d at 1130-1132.)

Addressing the negligent maintenance theory, however, Terbush explained that maintenance of the system does not necessarily implicate policy judgments. “Our case law directs that, by nature, matters of routine maintenance are not protected by the discretionary function exception because they generally do not involve policy-weighing decisions or actions.” (Id., 516 F.3d at 1133-1134, emphasis added.)

Reviewing a decision to ignore a mandate to post speed-limit signs does not require a court to second-guess an administrative agency’s social, economic or political policy decisions. In Seyler v. United States (9th Cir. 1987) 832 F.2d 120, a motorcycle passenger, injured when motorcyclist failed to negotiate turn, filed an action against the Government alleging that it failed to post proper speed-limit signs for the road. The court reversed a district court decision that applied section 2680(a) to absolve the Government of liability.

Citing Varig Airlines, the court in Seyler explained, “We doubt that any decision not to provide adequate signs would be of the nature and quality that Congress intended to shield from tort liability.” (Seyler, 832 F.2d at 123.)

Note, however, that the Government’s action (or omission) does not actually have to be based on a policy analysis; it will be protected by the discretionary function exception if it is susceptible to policy analysis. (See Chadd, 794 F.3d at 1113 [Whether Park officials actually took into consideration the policy objectives listed in the Service’s guidelines is irrelevant because the challenged decision need not be actually grounded in policy considerations, but must be, by its nature, susceptible to a policy analysis].)

Fiscal limits are insufficient to support the discretionary function exception

The Government might contend that, even if there is a mandate, the decision of whether and when to implement it requires allocation of limited fiscal resources, so the decision is still discretionary. In times of budget deficits the argument has a superficial appeal. Do not accept the premise.

“Limited funds” is not an acceptable excuse for ignoring explicit safety mandates. (ARA Leisure Services, 831 F.2d at 195-196. [“The fact that Park Service maintenance personnel were required to work within a budget does not make their failure to maintain [a park road] a discretionary function for purposes of the FTCA . . .. To hold otherwise would permit the discretionary function exception to all but swallow the [FTCA].”]) 

Discovery and investigation

Counsel litigating an FTCA case must assume that the Government will vigorously assert the discretionary function exception. Exhaustive research of applicable statutes and regulations is therefore important. Federal regulations, in particular, may provide specific mandates. Not so obvious, but critical, is investigation into less well-publicized policy statements or management plans, directives or specifications that the Government imposed on itself.

It is also worthwhile to learn about the cost of implementing maintenance and repair measures, or of posting warning signs, or taking other measures. The Government will urge that it has limited funds, despite the case law holding that this is a weak excuse for disregarding safety. Still, be ready to explain to the court the implausibility of the Government’s position, for example, by showing how unreasonably long the Government allowed the land to go unrepaired. Be prepared to prove the modest cost of posting warnings or the minimal effort to conduct the mandated tests.

Meet and defeat the discretionary function exception with thorough research and investigation.