The Federal Tort Claims Act of 1946 (FTCA) constitutes a broad waiver of the immunity of the United States from suit in tort. It has no limitation as to the amount recoverable by suit and has a two-year statute of limitations. The suit is barred unless submitted in writing to the appropriate federal agency as an administrative claim within two years after their accrual. Prior to the FTCA the United States had Absolute Sovern Immunity from all tort claims. Absolute Sovern immunity allows the Federal Government to be immune from a tort claim and unable to be sued for the allegedly wrongful act under any circumstances. This dates all the way back to the English common law legal maxim “rex non potest peccare”, meaning “the king can do no wrong.” This sovereign immunity is absolute unless the federal government has waived its immunity or consented to a suit. The enaction of the FTCA waived the Federal Governments sovereign immunity to a limited extent. The FTCA allowed “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.”

An example of how things changed after the FTCA was enacted is that one year prior to the FTCA, in 1945, an airplane struck the Empire State Building, killing and seriously injuring several people in the building and causing extensive property damage. The aircraft was identified as a United States Army bomber piloted by a serviceman who was flying incredibly low over New York City. The victims of this accident had no judicial remedy available to recover damages from the United States Government, because the doctrine of sovereign immunity presented an insurmountable barrier. After the FTCA was enacted in 1946, it was made applicable to all claims accruing on and after January 1, 1945. Thus, giving the victims of the of the Empire State Building accident the chance to recover damages for their injuries.

However, the United States Government’s liability is not the same as a private individual. There are a variety of types of claims that expressly exclude the Government from liability. The FTCA has a section which lists these exclusions.

Here is a brief list of some of the excluded claims listed in the FTCA:

  1. Claims based upon the performance of a discretionary function or duty, whether or not the discretion involved is abused;
  2. Claims based upon acts of government employees, exercising due care, in the execution of a statute or regulation;
  3. Claims arising out of the loss, miscarriage, or negligent transmission of postal matter;
  4. Claims arising out of the assessment or collection of any tax or customs duty;
  5. Claims arising out of the detention of goods or merchandise by any law enforcement officer;
  6. Claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights; however, claims accruing on or after March 16, 1974, for assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process are covered if they are based upon acts or omissions of federal investigative or law enforcement officers;
  7. Claims arising out of the combatant activities of the armed forces during time of war;
  8. Claims arising from the activities of a federal land bank, a federal intermediate credit bank, or a bank for cooperatives.

The “discretionary function” exception is the most important on this list because it is the widest reaching. Congress intended the FTCA to permit liability for “the ordinary common-law torts” but at the same time it wanted to assure that “certain governmental activities” would not be disrupted by the threat of damage suits. To protect the Government from “liability that would seriously handicap efficient government operations” was a basic purpose of Section 2680(a), commonly referred to as the discretionary function exception. The discretionary function exception has two clauses, each stating a separate exclusion from the coverage of the FTCA. First, it “excludes claims based upon an act or omission of an employee of the Government, exercising due care in carrying out statutes or regulations whether they be valid or not” (due care exception). Second, it “excludes claims based upon the performance of, or the failure to perform, a discretionary function or duty by a federal agency or employee, whether or not the discretion involved be abused”. The Due care exception allows a government official to balance the considerations involving the public interest—i.e., social, economic or political policy. The second clause makes the discretionary function exception apply whether or not negligence was present and whether or not there was an abuse of discretion. Courts have applied a two-part analysis in determining the applicability of the due care exception. First, the court asks whether the statute or regulation specifically mandates the course of action that the employee must follow. Second, the court asks whether the employee deviated from the requirements of the statute or regulation or otherwise failed to act with due care. If a government employee does not act with due care, but act negligently or wrongfully, in the execution of the laws or statutes and does not use discretion, then the discretionary function exception is not applicable. In Jayvee Brand, Inc. v. United States, the D.C Circuit Court declared that “it is clear that the discretionary function exception does not apply when a government employee fails to follow obligatory procedures in applying a rule that itself is an exercise of discretion”. In other words, if a procedure is mandatory, then the discretionary function exception does not offer immunity to the government. However, if there is no readily ascertainable rule or standard, any judgment used in making a decision is protected by the discretionary function exception.

In Dalehite v. United States the Supreme Court stated, “One only need read § 2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions”. Dalehite stated three principal areas of application of the discretionary function exception: (1) claims based upon the decisions of administrators; (2) claims based upon the regulatory conduct of regulatory agencies or officials; and (3) claims arising from the design and execution of public works. The first two areas of application involving the discretionary function exceptions are fairly straight forward. They preclude any attempt to hold the Government liable for the decisions made using discretion in the absence of a standard or rule and putting regulations into effect. The third area is more complex.

The discretionary function exception applies to the design and execution of a public works, even if injury results from wrongful or negligent decisions in the design. This is because as the the basis for inclusion of the discretionary function exception was that “Congress wished to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic and political policy”. When the claim arises out of the execution of the public works project or governmental program if the plan or design itself dictates the specifications, schedules, or details of the operation (such as if the plan dictates negligently designed dikes or revetments, or the plan calls for blasting, or specifies an inadequate package or insufficient label for an inflammable substance), which, when carefully adhered to, give rise to the claim, the discretionary function exclusion is applicable. However, if there is a wrongful deviation from, or negligence in carrying out, the design, specifications, schedules, or other details of operation set forth in the overall plan, the discretionary function exception is not applicable, and the Federal government can be held liable under the FTCA. Also, If the claim arises out of negligence in connection with the day-to-day operation and maintenance of the public works or program (such as if there is a negligent failure to light up navigation locks at night), the discretionary function is not applicable.

The Supreme Court expanded on the Dalehite decision. Berkovitz v. United States (1988) fashioning 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.” Only if both prongs are satisfied does the exception serve as a bar to claims under the FTCA.

United States v. Gaubert (1991) stated “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, when properly construed, the exception ‘protects only governmental actions and decisions based on considerations of public policy.” The boundary between decisions “based on considerations of public policy” and those that are not 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. Gaubert said “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.”

In short, while the discretionary function exception is very complex and convoluted, at its core, it is a task performed by a government employee that involves a permissible exercise of policy judgment by the employee. The Federal Tort Claims Act protects the United States government from suits based on the performance of discretionary functions by its employees if the situations presented above are applicable to qualify as a policy judgment.