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The Elusive Discretionary Function Exception from Government Tort Liability: The Narrowing Scope of Federal Liability

; Oxford, Ohio Vol. 30, Iss. 2,  (Sep 1992): 223.

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In the law of sovereign immunity, the discretionary function exception (DFE) distinguishes between acts that expose the government to tort liability and acts that do not. The DFE is a protected zone Congress engrafted on the Federal Tort Claims Act (FTCA) in 1948.(1) The DFE is one of the last surviving remnants of sovereign immunity, which has steadily been eroded since the 1940s. Similar protections have developed under statutory exceptions or by decision in most states.(2)

Commentators have noted many difficulties in identifying the precise boundaries of the DFE protected zone.(3) Courts have struggled with several "semantic dichotomies" to aid in the analysis. These include the governmental-proprietary dichotomy, the planning-operational dichotomy, and the discretionary-ministerial dichotomy.(4) However, the guidance that has emerged from nearly 50 years of common law, legislative history, and theoretical analysis is satisfactory in only the simplest of cases. It falls short particularly in the increasingly complex governmental functions that parallel private sector activities.

There is general agreement that government policy making decisions should not be second-guessed through the tort system.(5) However, it is difficult to reliably distinguish immune governmental action from governmental excursion into private sector activities, for which there is liability. The various judicial and legislative formulations of the DFE are cast in language that, unfortunately, retains significant ambiguity in characterizing the extent of protected policy-based discretion. There has been uncertainty about why purely governmental activities should be protected, what constitutes public policy judgments, and how to accurately draw the line separating the immune acts of discretionary decision making from non-policy based implementation activities for which government is held responsible.(6)

The first phase in analyzing the challenged conduct for the presence of the protected discretion is an examination of whether the action is authorized and "a matter of choice for the acting employee.(7) The language of...