FEDERAL TORT CLAIMS ACT - THE PROPER SCOPE
OF THE DISCRETIONARY FUNCTION EXCEPTION
Daniel E. Mattkews*
The decade of necessary judicial construction following the passage of
the Federal Tort Claims Act in 1946' has generally met the expectations
of the Bar in parting the cloak of "sovereign immunity" historically
fashioned to federal government functions. Citizens have found a judicial forum for the prosecution of just claims, and both Congress and the
Court of Claims have been relieved of a considerable portion of the awkward burden of processing such claims by review and legislative action.
There are many who will not agree with these statements, and it is
true that these benefits have been sharply limited by the unexpected emphasis and extreme caution applied in construing the "discretionary
function" exception. 2 Yet it must be admitted that the federal courts
have not faced an easy task. Mr. Justice Frankfurter has aptly expressed the problem:
"Of course when dealing with a statute subjecting the Government to
liability for potentially great sums of money, this Court must not promote
profligacy by careless construction. Neither should it as a self-constituted
guardian of3 the Treasury import immunity back into a statute designed,
to limit it."
The early cases ruling on the application of the discretionary function
represented a conflict in approach which reached a climax in Dalehite v.
United States.4 The Texas City explosions, causing approximately
$2,000,000,000 in damages formed the basis for the Dalehite case. The
decision of the Supreme Court of the United States affirming the denial
of relief under the Act standing alone did little to clarify the scope of
the exemption.
A later ruling of the Court 5 sheds some light, albeit murky, on Dale* A.B., Canisius College, Buffalo, N.Y.; LL.B., Washington College of Law, The American University, Washington, D. C.; LL.M., Georgetown University. Member of District of
Columbia Bar; Lecturer in Law, Catholic University Law School, Washington, D.C. Former
Editor in Chief of this Review.
1 60 Stat. 842 (1946); 28 U.S.C. §§ 1346(b), 2671-2680(a) (1952).
2 Id. § 2680(a) (1952): The provisions of this chapter and § 1346(b) of this title shall
not apply to
(a) Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not such
statute or regulation be valid, or 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.
3 Indian Towing Co. v. United States, 350 U.S. 61 (1955).
4 346 U.S. 15 (1953).
5 350 U.S. 61 (1955).
FEDERAL TORT CLAIMS ACT
kite, and it appears that the materials for early definition may now be
available. Therefore, the purpose of this paper is to examine the statutory and judicial background leading up to Dalehite, review this precedent case, and in the light of more recent decisions reach some conclusions, however tentative, as to possible solutions either legislative or
judicial.
The legislative history of the Federal Tort Claims Act embraces a
number of Congressional years, and references to a "discretionary function" exception may be found in a number of reports.' However, the
language considered significant by legal commentators in 1947 is the
passage later relied on by both the majority and dissenting opinions in
Dalehite v. United States. The text is as follows:
"The first subsection of Section 402 exempts from the bill claims based
on the performance or non-performance of discretionary functions or duties
on the part of a federal agency or government employee. This is a highly
important exception intended to preclude any possibility that the bill
might be construed to authorize suit for damages against the government
growing out of an authorized activity, such as a flood control or irrigation
project where no negligence on the part of any government agent is
shown. . . It is also designed to preclude application of the bill to a
claim against a regulatory agency ... based upon an alleged abuse of discretionary authority by an officer or employee, whether or not negligence
is alleged to have been involved. To take another example, claims based
upon an alleged negligent exercise by the Treasury Department of the
blacklisting or freezing powers are also intended to be excepted. The bill
is not intended to authorize a suit for damages to test the validity of or
provide a iemedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion. .... 'IT
Early reviews of the Act generally agreed that the "discretionary function" exception was essential to preserve freedom of action in the executive branch and did not predict any difficulty in judicial administration
of this provision." Gottlieb suggested that the exception was in accord
with the well recognized distinction between the acts of the government "qua government" and those of a proprietory nature and that
whether or not mandamus would lie against the government officer would
6 See H.R. Rep. No. 2428, 76th Cong., 3d Sess. (1940); H.R. Rep. No. 2245, 77th
Cong., 2d Sess. (1942) ; H.R. Rep. 1287, 79th Cong., 1st Sess., 5, 6 (1945) ; S. Rep. No. 1400,
79th Cong., 2d Sess. 33 (1946).
7 H.R. Rep. No. 1287, 79th Cong., 1st Sess., 5, 6 (1945).
8 See Gottlieb, The Federal Tort Claims Act-A Statutory Interpretation, 35 Geo. LJ. 1,
44 (1946), wherein it is stated:
The exclusion from suit under the act of discretionary functions or duties of a federal
agency or employee or employee of the government is of course essential. to preserve the
necessary latitude of action inherent in the exercise of discretion unhampered by
threat or pressure of damage suits.
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[Vol. 6
indicate whether the act complained of was merely ministerial, or
whether it was discretionary and protected by the exception."
However, as stated ante, the application of the statutory exception has
not proved to be as routine as these views would indicate. A 1953 article
states that the term "discretionary function" is inadequate as a guide to
the courts and requires definition.' 0 The author cites six factors used in
judicial application of the exception as follows: (1) whether the statute
under which the official acts employs mandatory or discretionary language; (2) the type of discretion involved, i.e., the more a decision exemplifies broad policy and resembles legislative activity, the closer it is to
conduct excluded from suit; (3) position of the employee; (4) repercussion of the activity, i.e., broad administrative decisions which have unusually far reaching consequences are excluded; (5) whether mandamus
will lie against the official; (6) the presence of "governmental function".
He concludes that the courts tend to overemphasize any one of the above
factors in an individual case and that no consistent pattern of judicial
interpretation of the exception has yet evolved.
If nothing more, the above conclusions are further evidence that the
courts have found the "discretionary function" exception difficult of
judicial administration.
CASE LAW 1948-53
Eamination of the cases in this period indicates that the courts were
consistent in developing certain broad rules. When the government was
engaged in an authorized governmental activity such as flood control or
irrigation work the exception generally precluded the claim. 1 This rule
.applied even if there was negligence or abuse of discretion. For example,
2
in Thomas v. United States"
the plaintiffs alleged the government should
have known that placing revetments in certain positions would throw
waters on the plaintiff's property. The court held that any negligence was
within the exception and denied recovery. Similar results were reached in
Olson v. United States'3 and Pacific National Fire Insurance Co. v.
TVA ' where the courts considered the decisions to release water through
a dam and to dynamite in building a dam discretionary. The acts com9 Gottlieb, supra note 8 at 42, 44.
10 Note, The Discretionary Function Exception of the Federal Tort Claims Act, 66
Harv. L. Rev. 488 (1953).
11 Coates v. United States, 181 F.2d 816 (8th Cir. 1950); North v. United States,
94 F. Supp. 824 (D. Utah 1950) ; Boyce v. United States, 93 F. Supp. 866 (S.D. Iowa 1950) ;
Olson v. United States, 93 F. Supp. 150 (D.N.D. 1950); Thomas v. United States, 81 F.
Supp. 881 (W.D. Mo. 1949).
12 Supra note 11.
13 93 F. Supp. 150 (D.N.D. 1950).
14 89 F. Supp. 978 (W.D. Va. 1950).
FEDERAL TORT CLAIMS ACT
plained of were held to be abuse of discretion and protected conduct under
the exception. A different result was reached in Ure v. United States"
wherein the government, after building a canal for a heavy volume of
water, had retained control and was operating it. The lower court found
that the canal was a dangerous instrumentality and held the government
liable on the grounds it was bound to exercise a high degree of care. Apparently the court concluded that the government in retaining control of
the canal was engaged in a housekeeping activity and that the "discretionary function" exception no longer protected the wrongful acts. It then
reached a verdict on common law principles of tort liability. Dicta in
Boyce v. United States 6 indicated that this court would cut off the protection of the exception, if it could be shown that low level employees
actually discharging the dynamite had deviated from the discretionary
plans approved by superiors.
The principle of protecting the government from liability when engaged in authorized programs was not limited to flood control and
irrigation. Where crops were damaged by wild geese congregating on a
government game preserve and where a car was damaged by a falling
tree employed in agricultural research, the courts held that the acts and
omissions of government employees in connection with these authorized
programs were the type of discretionary activities protected by the
statute.17 In Dalehite v. United States" the Supreme Court tended to
rely on this point of view in applying the exception to what it considered
as a protected governmental activity.
A second principle followed by the courts in interpreting the statutory
exception was to absolve the government from liability whenever the act
complained of was found to be conduct authorized by statute or regulation.' 9 When an official refused to cancel a grazing permit as required
by regulation, the United States was held liable2 0 Of course in this
situation, mandamus might well lie, and there seems clearly no discretion
involved.
In some instances the courts attempted to differentiate between the
exercise of discretion and the subsequent performance by subordinates,
holding that if there was negligence in performing, then the government
15 93 F. Supp. 779 (D. Ore. 1950), aff'd, 193 F.2d 505 (9th Cir. 1951).
16 93 F. Supp. 866 (S.D. Iowa 1950).
17 Sickman v. United States, 184 F.2d 616 (7th Cir. 1950); Toledo v. United States, 95
F. Supp. 838 (D.P.R. 1951).
18 346 U.S. 15, 32 (1953).
19 Smart v. United States, 207 F.2d 841 (10th Cir. 1953); Denny v. United States, 171
F.2d 365 (5th Cir. 1948); Old King Coal Co. v. United States, 88 F. Supp. 124 (S.D. Iowa
1949); Kendrick v. United States, 82 F. Supp. 430 (N.D. Ala. 1949).
20 Oman v. United States, 179 F.2d 738 (10th Cir. 1949).
THE AMERICAN UNIVERSITY LAW REVIEW
(Vol. 6
was liable. Such a result was reached in Somerset Seafood Co. v. United
States"' where a ship wreck was caused by the failure to post a navigational aid. The court held that discretion had been exhausted in deciding that there should be an aid posted and that the subsequent failure
of a low grade employee to perform his job with due care left the government liable. Similar decisions were reached where, under regulations,
patients have been admitted to government hospitals, and the lack of
due care in treatment has caused injuries.2 2 In these cases the courts
limited statutory discretion to the decision to admit the patient,23 but it
should be noted that subsequent specific acts of negligence were alleged.
Dalekite v. United States does not appear to have been concerned with
this point, as no specific acts of negligence at low levels were alleged.
In another line of cases, where the government is carrying out a housekeeping task or where the performance of the proprietory function is
incidental to and can have no bearing on the success of an authorized
governmental activity, the courts uniformly refused to extend the protection of the exception.2 4
The effect of Dalehite v. United States on these principles was considerable and it is appropriate at this point to examine that controversial
decision. The facts are that the government, at cabinet level, instituted
a program to provide fertilizer to foreign countries. In order to carry
out this program the government ordered and supervised the manufacture and shipment of fertilizer grade ammonium nitrate (FGAN). While
this type of cargo was stored on foreign ships in Texas City harbor it
exploded, giving rise to claims aggregating $2,000,000,000. The District
Court held the government liable. The Court of Appeals for the Fifth
Circuit reversed, and the Supreme Court upheld the Circuit Court in a
divided opinion. In the briefs, plaintiffs alleged (1) that the government
did not exercise due care in manufacturing and shipping FGAN, as well
as in failing to warn of the dangers (2) that under the law of Texas,
the government as a shipper of explosives was liable without fault. The
21 193 F.2d 631 (4th Cir. 1951).
22 Costley v. United States, 181 F.2d 723 (5th Cir. 1950) ; Griggs v. United States, 178
F.2d 1 (10th Cir. 1949), rev'd on other grounds, 340 U.S. 135 (1950); Grigalotiskas v.
United States, 103 F. Supp. 543 (D. Mass. 1951), aff'd, 195 F.2d 494 (1st Cir. 1952) ; Dishman v. United States, 93 F. Supp. 567 (D. Md. 1950).
23 But cf. Denny v. United States, 171 F.2d 365 (5th Cir. 1948).
24 United States v. White, 211 F.2d 79 (9th Cir. 1954) (Government as landowner had
duty to warn business invitee of dangers); United States v. Trubow, 214 F.2d 192 (9th
Cir. 1954) (Government operating hospital has duty to keep premises safe); Griggs v.
United States, 178 F.2d 1 (10th Cir. 1949) (Government operating hospital liable for negligence of employees); Maryland v. Manor Real Estate & Trust Co., 176 F.2d 414 (4th Cir.
1949) (Government has duty to keep premises safe).
19571
FEDERAL TORT CLAIMS ACT
Court rejected any theory of liability without fault, holding that the"plain
words of the statute required a negligent act or omission by an employee.
As to the first issue, the Court in a lengthy opinion came to the conclusion that any negligence was either in the exercise of a discretionary
function or the abuse of discretion and thus was the type of conduct
which Congress intended to preclude from legal action by the "discretionary function" exception. The Court held inter alia that there can be
no liability for a government function and that the program to ship fertilizer was such an activity; 5 and as to the discretion protected, it stated:
"It is the discretion of the executive or the administrator to act according to one's judgment of the 2best
course, a concept of substantial historical
6
ancestry in American Law."
Continuing, the Court refused to define where discretion ends but said
that in this case establishing plans, specifications or schedules of operations was discretionary activity and that acts of subordinates in carrying
out such instructions were not actionable. It should be noted that the
Court considered the fixing of bagging temperatures as within the exception.2 7 Apparently a change in these temperatures that would have increased safety precautions would have also increased the cost and slowed
the operations of the program. The majority also refused to find the
Coast Guard negligent in failing to regulate loading or fighting the fire.
The dissenting opinion paid little attention to the governmental aspects of the program, but treated the situation as one in which the government was engaged purely in a housekeeping function. It would require
a high standard of care in such activities and apply common law principles, limiting the exception to purely governmental activities. Viewing
the government as a manufacturer and shipper, it found that the government had a duty of further inquiry as to conditions under which the
dangerous explosive could be safely handled, that there was negligence
in shipping and a failure in the duty to warn of the dangers. Paradoxically, both the majority and the dissenting opinions relied on the same
paragraphs of legislative history.
The basic differences in the Court seem twofold. First, the majority
did not reject the concept that the government acting in a proprietory
capacity should not be held to high standards of care, but rather emphasized that in this case to do so would interfere unduly with a governmental program. It appears that the majority was of the opinion that
to attempt to separate the governmental aspects from the housekeeping
25 346 U. S. 1, 32.
26 Id. at 35.
27 Id. at 40.
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[Vol. 6
functions was not realistic. It relied on the concept expressed in Coates
v. United States,2 8 that Congress deliberately used the exception with
intent to convey the traditional meaning that would continue to exclude
judicial authority from interference with lawful legislative and executive
action. The dissent seemed to say that, regardless of the program, the
government when in business must be held to the same standard of care
as the private individual. However, this is a dubious interpretation of
the dissent and perhaps can be explained by the second very real difference in the opinion. The majority and dissent disagreed as to the facts.
The majority concluded that there was no evidence showing information available to the government that should have led to different conduct. The dissent accepted at least three findings of the trial judge as
follows: (1) the government should have known of the dangers involved,
(2) made further inquiry as to precautions, and (3) exercised more
care in shipping and warned others of the dangers. These latter findings
can only be predicated on the conclusion that the government had information available which should have led to different control.
POST DALEMTE
Dalehite furnished little guidance to the federal courts. The Court
did clearly negate any application of the "liability without fault" doctrine
under the Federal Tort Claims Act and certainly placed such traditional
governmental functions as firefighting beyond the reach of the statute.
But .the broad and vague language failed to circumscribe the term "discretionary function" with any visible boundaries.
The lack of preciseness is evident in later cases, which generally follow
one of the principles set forth ante, but find the courts sorely troubled in
determining the extent of discretion residing in bureaucratic hands. There
has been no change when the conduct complained of is either authorized
by or contrary to statute or regulation. 0 There have been no recent
cases involving purely housekeeping functions of the government, and
it appears that the early rule refusing to limit government liability by
application of the "discretionary function" exception to these situations
still stands.30
The early rule, that the government when engaged in an authorized
governmental activity is not liable even if there has been negligence or
abuse of discretion, is often enunciated and Dalehite v. United States
28 181 F.2d 816 (8th Cir. 1950).
20 Jones v. United States, 139 F. Supp. 38 (D. Md. 1956) (FBI agent not bound to
answer complaint); Cf. Hatahley v. United States, 351 U.S. 173 (1956). For earlier cases
enunciating these principles, see notes 19 and 20 supra.
30 See page 25 supra.
FEDERAL TORT CLAIMS ACT
cited to the point.31 In Avina v. United States, 2 the government was not
liable for the drowning of an eight-year-old boy who scaled a fence to
swim in a government-operated canal. Taking the broadest view of
Dalehite v. United States, the district court found that the operation of
the canal involved discretion.3 3 The result should not be questioned,
as no negligence was found, but the freeing of government employees
from any standard of care in operating a dangerous instrumentality is
fraught with implications that would leave the statute an empty shell.
Actually, it was superfluous to the needs of the case. Despite the allegations of specific negligence against United States employees in maintaining an approach river fill, in Danner v. United States, 4 the court relied
on Thomas v. United States35 and Dalehite v. United States,"6 and denied
recovery. It concluded that implementation of the Missouri River flood
37
control project was wholely discretionary. Williams v. United States
saw a district court infer from governmental silence on grounds of security
that an airplane flight was experimental and hence protected as discretionary. The appellate court did not concur with this extreme view of
the meaning of Dalehite, but affirmed with no mention of earlier cases
that had been decided against the government under a theory of res ipsa
loquitur.3 8
Where plaintiff's property was damaged by insecticide sprayed on government property, a circuit court, relying on Dalehite, denied relief on
the theory that the conduct was part of a government program. 9 Again, a
court ruled that'in the absence of a showing of specific acts of negligence
or violations of plans of superiors, plaintiff could not recover from the
United States for clothing stolen from him at a reception farm operated
by the government under the Migrant Labor Agreement of 1951. It was
81 Goodwill Industries v. United States, 218 F.2d 270 (5th Cir. 1954); National Mfg. Co.
v. United States, 210 F.2d 263 (8th Cir. 1954) ; Harris v. United States, 205 F.2d 765 (10th
Cir. 1953) ; Jones v. United States, 139 F. Supp. 38 (D. Md. 1956) ; Friday v. United States,
137 F. Supp. 238 (D. Idaho 1956); Bartholomae Corp. v. United States, 135 F. Supp. 651
(S.D. Cal. 1955); Barroll v. United States, 135 F. Supp. 441 (D. Md. 1955); Williams v.
United States, 115 F. Supp. 386 (N.D. Fla. 1953), aff'd on other grounds, 218 F.2d 473
(Sth Cir. 1955); Avina v. United States, 115 F. Supp. 579 (W.D. Tex. 1953); Danner v.
United States, 114. F. Supp. 477 (W.D. Mo. 1953).
32 Supra note 31.
33 Cf. Ure v. United States, 225 F.2d 709 (9th Cir. 1951).
34 114 F. Supp. 477 (W.D. Mo. 1953).
35 81 F. Supp. 881 (W.D. Mo. 1949).
36 346 U.S. 15 (1953).
37 115 F. Supp. 386 (N.D. Fla. 1953), aff'd on other grounds, 218 F.2d 473 (5th Cir.
1955).
38 Gaidys v. United States, 194 F.2d 762 (10th Cir. 1952); D'Anna v. United States, 181
F.2d 335 (4th Cir. 1950).
30 Harris v. United States, 205 F.2d 765 (10th Cir. 1953).
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[Vol. 6
held that the "discretionary function" exception precluded the suit.40
Although National Manufacturing Co. v. United States41 was decided in
favor of the government on the grounds that Flood Control Acts specifically precluded relief, the opinion held that the government had no duty
to warn on floods and that any erroneous acts were protected by the
"discretionary function" exception. Here too, the result is reasonable,
but there seems no need for expanding the protection of discretionary
activity. If, in the view of the court, the operation of weather information service creates no duty, there can be no negligence, and ipso facto,
no recovery under the Federal Tort Claims Act.
A finding that the government was not liable for an automobile accident, wherein the driver, carrying out instructions, was not allowed sufficient time to sleep, so that sleep overtook him on the road, carried the
theory of protected discretionary activity beyond reasonable bounds.4 2
Plaintiff had released the driver, and under the law of the state this act
released all joint tortfeasors. But the court further stated that the act
of the supervisor in planning the travel was the kind of discretion protected by statute. Thus low-level negligence is protected by reliance on
Dalehite. Bartkolomae Corp. v. United States4 3 is of special interest
because of the insight it affords into a future made tremendously complicated by the governmental program in atomic energy.44 Plaintiff's farm
was damaged by an atomic detonation. Plaintiff alleged that an expert
employed by the government had been negligent in the placing of microbarographs, in that he had not placed any in the direction of plaintiff's
property. The court held that this was an act of a subordinate carrying
out operations of the government in accordance with instructions and
therefore was not actionable. Plaintiff had contended that the 'specific
acts complained of were not of the discretionary type protected by the
statute, but the court did not agree.
On the other hand, in many cases where the circumstances are not
unlike those in Dalehite v. United States and the decisions following it,
supra, courts have continued to distinguish between the exercise of discretion and the subsequent performance by subordinates, holding that the
protected discretion has been exhausted at a higher level and that the
United States is liable for negligent acts of subordinates in carrying out
Goodwill Industries v. United States, 218 F.2d 270 (5th Cir. 1954).
Cir. 1954).
42 Friday v. United States, 137 F. Supp. 238 (D. Idaho 1956).
43 135 F. Supp. 651 (S.D. Cal. 1955).
44 See Stromswold, The Twilight Zone of the Federal Tort Claims Act,'4 Am. U. Int. L.
Rev. 41, 53 (1955).
40
41 210 F.2d 263 (8th
FEDERAL TORT CLAIMS ACT
superiors.45
plans of
The result is usually reached by distinguishing the
Dalehite doctrine, but in fact, often constitutes a rejection of the reasoning. For example, in Smith v. United States,46 plaintiff's water supply was
diminished because of the construction and maintenance of an air base.
In denying the government's motion to dismiss, the district court held
that the statutory protection was afforded only to negligent acts committed in accordance with discretionary plan; but where subordinates
acted under no plan or contrary to the plan there was no exemption of
liability. Apparently this court would consider discretion exhausted at a
rather high level. A similar result was reached in United States v.
White,47 where White an employee of Mars Metal Co., was injured by a
dud left on an artillery range. The company had contracted to purchase
and clear scrap metal from the firing range of an Army Camp. The
evidence showed that despite recommendations of an officer to clear
duds, officials had rejected the plan as expensive and that the government not only failed to warn White of the dangers of duds but a sergeant
in charge had assured him the range was safe. The court held that White
was a business invitee and that the government's failure to warn him of
the dangers was not discretionary but the failure in a duty. Therefore
the goverment was liable. Although a literal reading of the Dalehite case
would suggest a different conclusion, there are factual distinctions. In
the instant case, there is no question but that the government should have
been aware of the dangers and warned White. Moreover the sergeant's
assurances were specific acts of negligence. Nevertheless, the court did
not clearly distinguish the cases, and was somewhat blunt in rejecting
the arguments offered by the government relying on Dalehite v. United
States.
Relying on Smith v. United States,48 a district court denied a motion
for summary judgment by the United States in Atkinson Co. v. Merritt,
Chapman, & Scott Corp.4 9 A cofferdam built by defendants as agents
for the government for the purpose of diverting waters of the American
45 Indian Towing Co. v. United States, 350 US. 61 (1955); Fair v. United States, 234
F.2d 288 (5th Cir. 1956); Dahlstrom v. United States, 228 F.2d 819 (8th Cir. 1956); United
States v. Union Trust Co., 221 F.2d 62 (D.C. Cir. 1955), affd without opinion, 350 U.S.
907 (1955) ; United States v. White, 211 F.2d 79 (9th Cir. 1954) ; 'rouse v. United States,
137 F. Supp. 47 (D. Del. 1955); Bullock v. United States, 133 F. Supp. 885 (D. Utah 1955);
Atkinson Co. v. Merritt, Chapman, and Scott Corp., 126 F. Supp. 406 (N.D. Cal. 1954);
Rufino v. United States, 126 F. Supp. 132 (S.D.N.Y. 1954); Pennsylvania R.R. Co. v. United
States, 124 F. Supp. 52 (D.N.J. 1954); Bevilaqua v. United States, 122 F. Supp. 493 (W).
Pa. 1954) ; Smith v. United States, 116 F. Supp. 80 (D. Del. 1953).
46 116 F. Supp. 801 (D. Del. 1953).
47 211 F.2d 79 (10th Cir. 1954).
48 116 F. Supp. 801 (D. Del. 1953).
49 126 F. Supp. 406 (N.D. Cal. 1954).
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River gave way damaging plaintiff's property. Neligence had been alleged
by the plaintiff. The court held that the building of the cofferdam might
be the result of executive discretion or a mere job of work and therefore
an issue existed to bar summary judgment. The court apparently was
of the opinion that the protected discretion might have been cut off with
the decision to build the cofferdam. But in order to hold that this question was at issue, the court found it necessary to distinguish the holdings
in Coates v. United States,50 Olson v. United States,51 and North v.
United States,5 2 concluding that the "discretionary function" exception
was not at issue in any of these decisions. It should be noted that the
Supreme Court had cited Coates v. United States in the Dalehite
opinion.
53
Pennsylvania Railroad Co. v. United States5 4 is another illustration of
the dilemma faced by the courts in attempting to give effect to both the
statute as a whole and the discretionary exception. A government officer
had ordered suspension of restrictions on the loading and storage of explosives at South Amboy ammunition depot. The government's motion
to dismiss was denied. Although the court stated that the government
was not liable as a result of such decision for damages caused by an ensuing explosion it held that the officer was still responsible for other conditions being met. Therefore the United States could be liable for the
latter negligence as well as for any carelessness in inspection. In essence
the court seemed to say once the discretion was exercised, any subsequent negligence by subordinates or the responsible officer was outside
the exception.
United States v. Union Trust Co.5 5 would seem contra the Dalehite
opinion, although the court distinguished on the record. Nevertheless the
Supreme Court affirmed without opinion.5 6 Here the control tower operator, a government employee, failed to warn an Eastern Airliner, which
was lost in a crash with a Bolivian pilot. The court held that any discretion was at a low level whereas in Dalehite the discretion exercised
was at a high level. Admittedly the Supreme Court had refused to say
at what level discretion is cut off, but the cases are difficult to reconcile
except on the basis that specific acts of negligence were alleged in the
instant case.
50
181 F.2d 816 (8th Cir. 1950).
51 93 F. Supp. 150 (D.N.D. 1950).
52 94 F. Supp. 824 (D. Utah 1950).
53 See page 28 supra.
54 124 F. Supp. 52 (D.N.J. 1954).
55 221 F.2d 62 (D.C. Cir. 1955).
56 350 U.S. 907 (1955).
19571
FEDERAL TORT CLAIMS ACT
Broad reliance on the Dalehite opinion was not countenanced by the
Supreme Court in Indian Towing Co. v. United States5 7 Plaintiff's barge
was grounded due to the failure of a navigational aid light. Plaintiff
alleged that a chief petty officer and others of the Coast Guard were
negligent in maintaining and servicing the light as well as in notifying
vessels it was not functioning. Without considering the specific allegations, the Court of Appeals affirmed dismissal of the complaint relying
on Dalehite v. United States. Before the Supreme Court, the government conceded that no discretionary function was involved and argued
that the activity was uniquely a governmental function and that under
the statute, if a private person could not perform the act complained of,
there was no governmental liability. The Court did not accept this argument and reversed, saying that the Coast Guard was not obligated to
undertake light house service, but that once it exercised discretion to
do so it was obligated to use due care to maintain. The majority held
that Dalehite v. United States was not applicable. This was a five to four
decision and the strong dissent stated inter alia that just as the fire
fighting activities of the Coast Guard was held not actionable in Dalehite, neither was the light house service in this case. Moreover the inaction of Congress after Dalehite should be viewed as a guide to statutory
construction.
Another view limiting Dalehite was expressed in Bullock v. United
States.5 8 Plaintiffs sued for damages to sheep as the result of nuclear
tests, alleging negligence. The government's motion to dismiss was denied. The court examined Dalehite and viewed it as allowing negligence
after discretion is exhausted to be a basis for action. The court further
stated that where acts directly involved authorized discretion there can
be no recovery, but where the acts performed are only incidental to
authorized discretion, there may be recovery.
In Dahlstrom v. United States59 the Court of Appeals for the Eighth
Circuit reviewed the Supreme Court's recent decisions and found a basis
to limit the application of the exception. A Civil Aeronautics Administration plane, making an aerial survey flew over plaintiff's land at an altitude of one hundred feet causing the runaway of two horses. The Court
held that the discretionary function exception protected the CAA decision
to conduct the survey, but that it did not protect the negligent low flying
in carrying out the plan. Moreover the Court said even if the survey
required low flying, the pilots might not have exercised due care. 60
57 350 U.S. 61 (1955).
58 133 F. Supp. 885 (D. Utah 1955).
59 228 F.2d 819 (8th Cir. 1956).
60 Cf. Harris v. United States, 205 F.2d 765 (10th Cir. 1953).
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In summarizing the case law since Dalehite v. United States, it is clear
that the scope of the exception is still unsettled. Some courts have used
the exception to protect negligent conduct so long as it was concerned
with an authorized government program. Other Courts have attempted to
limit the protection to decisions to initiate a program and to hold the
government liable for any subsequent negligence. The plea of res ipsa
loquituris sometimes accepted. Liability without fault is not to be heard.
The Coast Guard fighting fires is performing a unique government
function and its conduct is notactionable. The Coast Guard operating
a light house service is a volunteer and has a duty to ships at sea. The
Supreme Court seems to be restricting the Dalehite doctrine in each subsequent case. But the Dalehite case was a four to three decision and
Indian Towing Co. v. United States narrowing Dalehite found the Court
just as closely divided. Therefore it is not possible to predict with any
certainty the course the courts will follow in construing this controversial
statutory exception. Yet it is equally clear that after ten years of statutory construction the citizen is entitled to settled law. The situation
requires a careful reexamination of the intent of Congress and a more
precise definition of the term "discretionary function."
SOME TESTS AND CONCLUSIONS
In formulating a test, it must be remembered that Congress deliberately
withdrew government immunity to tort actions and then provided what
seemed to be a very reasonable and essential exception to continue to
guarantee independence in executive and legislative action. In some
courts the construing of the exception, by literal interpretation, appears
to have given more emphasis to the exception than the basic purpose of
the Act. The application therefore would seem to have limited the waiver
of immunity to a greater extent than intended by Congress."' One writer
would limit the exception to original program decisions and subsidiary
policy decisions made in executing and essential to the program. Thus
as high a degree of care as is consistent with the success of the project
would be required." Another recommends the reasonable man criterion
especially when the conduct complained of originates in quasi government
activity and when the government is engaged in business.03 Both of these
suggestions have considerable merit, but the first would place all aspects
of a government program above the welfare and safety of the people.
It would relieve those who make program decisions for the government of
See Note, 42 Geo. LJ. 172 (1953).
62 Comment, 52 Mich. L. Rev. 733 (1954).
63 Note, 42 Geo. LJ. 172 (1953).
61
FEDERAL TORT CLAIMS ACT
any compliance with due care, if the decision could be even remotely
hinged to the success of the program. The second suggestion would require judicial rewriting of the statutory exception to impose the standard
of the reasonable man on all government conduct.
Peck, in a recent article analyzes the recent cases and detects a trend
holding that discretion is exhausted when the policy is made, with sub4
sequent negligent acts in carrying out the policy giving rise to recovery.
He proposes the following:
"The proof required of the Government to establish the defense should
be that the acts or omissions of which .the plaintiff complains were specifically directed, or risks knowingly, deliberately, or necessarily encountered, by one authorized to do so, for the advancement of a governmental objective and pursuant to discretionary authority given him by.
the Constitution, a statute, or regulation . .. "65
Peck applied this test to Dalehite v. United States, Dahlstromv. United
States, and Indian Towing Co. v. United States and found a basis for
reconciliation. The test is a laudable attempt to cut off authorized discretion at a high level and represents the trend of some later decisions."
But unfortunately one can use this test in reconciling many of the cases
which free the government from liability under the authorized program
theory. 7 For example, in Harrisv. United States,8 the court could have
said that the risk of damaging plaintiff's property was deliberately
assumed to advance the government objective of spraying its own property and have reached the same result, namely no recovery. Likewise,
in Dahlstrom v. United States, the court could have followed Harris v.
United States and concluded that the CAA had knowingly authorized the
low-level flying to accomplish its survey. Further, the tendency of the
executive branch of the government to re-delegate authority by regulation, in the interests of effective decentralized management, would bring
many low-level decisions within this test. For example, the test could
cover the denial of recovery in Danner v. United States. 9
Stromswold presents cogent reasons for statutory definition of the
64 Peck, The Federal Tort Claims Act: A Proposed Construction of the Discretionary
Functions Exception, 31 Wash. L. Rev. 207 (1956).
65 Id. at 225, 226..
06 Fair v. United States, 234 F.2d 288 (5th Cir. 1956); Bulloch v. United States, 133
F. Supp. 885 (D. Utah 1955); Atkinson Co. v. Merritt, Chapman, and Scott Corp, 126 F.
Supp. 406 (N.D. Cal. 1954).
07 Williams v. United States, 218 F.2d 473 (5th Cir. 1955); Goodwill Industries v.
United States, 218 F.2d 270 (5th Cir. 1954) ; Friday v. United States, 137 F. Supp. 238 (D.
Idaho 1956).
68 205 F.2d 765 (10th Cir. 1953).
69 114 F. Supp. 477 (W.D. Mo. 1953). See page 29 supra.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 6
term "discretionary function". 7 ° But there seem to be two obstacles to
this remedy. First, the present statutory language, along with the legislative history, originally appeared to be a relatively clear statement when
first enacted. It has been the conscious reluctance of the courts to restrict
the exception and thus retain a broad concept of sovereign immunity
that has wrought the chaos. Would a revised statute receive different
treatment? Secondly, the term "discretionary function" is of long historical significance in judicial treatment of government action. It would
appear that the Supreme Court is the more likely instrument for accomplishing a precise and useful definition.
Another factor that is hinted at in Mr. Justice Frankfurter's language,
. . . this Court must not promote profligacy by careless construction ... ,71 and more vigorously expressed in other decisions is the traditional habit of the courts to treat any waiver of sovereign immunity
very narrowly and impute no governmental acquiescence to liability that
is not specifically expressed.72 This reluctance is steeped in tradition and
in part results from a logical concern to refrain from interfering with
the executive and legislative branches. A logical extension of this doctrine could explain Dalehite and many of the flood control cases. In
Dalehite, did the majority of the Court believe that an assessment of
$2,000,000,000 in damages would constitute undue interference with the
Congress? The decision did not bar the plaintiffs from relief, for Congress could lawfully pass bills in favor of their claims. Perhaps the
majority preferred to pass the decision as to this kind of expenditure
to the legislature, which is responsible for appropriations. It is a remote
conjecture, of course, to infer that the courts consider the amount of
damages in statutory construction. But this perhaps unlikely possibility
could be limited by a simple amendment to the Act. It is only necessary
that Congress consider placing a definite financial ceiling on the court's
jurisdiction over tort claims against the government. So long as the discussion of such a bill is a matter of record, it is not important as to the
ultimate approval or disapproval by Congress. The courts would no
longer lack legislative guidance on the subject.
In the opinion of the writer, except for this dubious postulation as to
the judicial attitude, judicial clarification of the term "discretionary function" should not be difficult. However, in light of the many decisions
denying relief under the Act on the so-called authorized program theory
70 4 Am. U. Int. L. Rev. 41, 56 (1955).
71 Indian Towing Co. v. United States, 350 US. 61 (1955).
72 See Hart & Wechsler, .The Federal Courts and the Federal System 236, 1150, 1161
(1953).
1957]
FEDERAL TORT CLAIMS ACT
and the difficulty in formulating rules to determine at what level discretion may be exhausted and an opposite result reached, it is believed the
solution must be radical if it is to be timely. Also, since the Supreme
Court has laid down one ,definition of the discretion protected7 3 it is the
only court that can enunciate a drastic revision. It is submitted that the
following definition might limit the exception:
"The discretion protected under the Act is that discretion of the executive
or administrator which is authorized by the Constitution or organic statute
of the agency involved."
This definition would not affect cases arising under the first part of
the exception, which has been clearly construed"4 and actually does not
involve discretionary conduct.5 Nor would it affect the accepted liability
of the government for negligence of its employees in carrying out a proprietory function that is incidental to, and without bearing on the suc6
cess of, a government activity.7
Application of the definition would affect the cases where the government defends on the theory that the conduct complained of was part
of an authorized activity and would facilitate the court's task in determining the level at which the protected discretion was cut off. For example, in Harrisv. United States, the statute authorized the agricultural
program, but it could not be contended that the statute authorized negligent spraying. Thus the court could reach a result consistent with Dahlstrom v. United States. In the latter case, the court, under the proposed
definition, would not have had to seek by tenuous means the level at
which protected discretion was exhausted, but would have easily reached
the same result by examining the statutory authority of the CAA.
The proposed definition would better tend to reflect present congressional thinking, although it is probably not the meaning Congress would
have attached to the term at the time the bill was passed. Nevertheless,
7
it meets all parts of the explanation found in the legislative history. 1
The word, regulation, has been consciously excluded, as it is believed
that to include it would show that agencies have conferred broad discretion by regulation arid thereby would result in even greater immunity.
Applying this definition to the majority opinion in Dalehite v. United
States does not make reconciliation impossible. It would reduce the conDalehite v. United States, 346 U.S. 15, 35, 36 (1953).
74 28 U.S.C. 2680 (a) (Supp. V 1952) first excepts, "any claim based upon an act or
omission of an employee of the Government, exercising due care, in the execution of a
statute or regulation .... "
15 See cases cited notes 19, 20, 29 supra.
76 See cases cited note 22 supra.
7 See page 23 supra.
13
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 6
duct protected under the Act and the Court would have had to determine
whether negligence existed. Inasmuch as it concluded that the government neither had, nor should have had, any information to warrant a
different course of conduct, it is unlikely that any failure in a legal duty
would be found. However, under more cogent reasoning, other courts
could not draw the broad implications that have too often prevented recovery.
Nor would the narrowing of the protected discretion leave government
activity overly subject to litigation. The plaintiffs would be required to
prove negligence. To accomplish this, it would be necessary first to find
that the government owed a duty to the plaintiff in the particular act
complained of. Further, it would be necessary to show a failure in this
obligation for recovery. These requirements should be sufficient protection to a government interested in the welfare of the individual citizen.
Under such a judicial definition there should be no undue interference
with a governmental program, and a standard of care would be imposed
on operating officials. 78 This kind of radical remedy is essential to stable
law and the restoration of needed vitality to the Act. A continued failure
to spell out the meaning of "discretionary function" inevitably must result
in the statute becoming a vehicle for handling relatively unimportant
claims in court while the significant workload of larger claims is again
returned to the uncertain discretion of Congress.
78 Cf. Friday v. United States, 137 F. Supp. 238 (D. Idaho 1956), wherein the court
extended the protection of the exception to the decision of a first line supervisor.
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