The "discretionary function" and "assault and battery" exceptions to the Federal Tort Claims Act : when they apply and how they work together

Introduction

You have just arrived at the office for another exciting day in the world of Army claims. As you sit down to drink your coffee and prepare for the morning's activities, your senior claims examiner steps hurriedly into your office and unfolds a newspaper on your desk. On the front page, in bold, inch-high letters, is the headline: "Army Soldier Arrested, Charged With Murder." The promise of a calm day has just been shattered.

Scanning down the page, you learn that the soldier referred to in the article was already facing disciplinary action under the Uniform Code of Military Justice (UCMJ) on an unrelated but serious charge. Worse yet, his commander had decided not to impose pretrial confinement. The soldier should have been on restriction at the time of the murder. Before you have finished reading the article, the newly hired attorney for the victim's family calls. He has learned that the soldier had a checkered service record and had committed violent acts in the past. In a demanding voice, he asks, "What was that commander thinking by failing to impose pretrial confinement on such a dangerous person?" He accuses the Army of negligently endangering the victim by violating its own rules. You know what to expect next--an FTCA claim for wrongful death.

The claim eventually arrives, accompanied by a folder full of newspaper articles questioning the Army's failure to prevent this crime. As you copy the documents and prepare to send off a mirror file to your Area Action Officer (AAO), you cannot help but sympathize with the Assistant U.S. Attorney who will have to dispose of this case. The claimant's attorney is unlikely to agree to any amount the government is likely to offer. A judge or jury would probably sympathize with the plaintiffs after hearing the gruesome facts. How will you handle this claim?

An experienced claims judge advocate will likely begin responding to such a claim by drafting a memorandum for the AAO recommending that the Army deny the claim. The FTCA creates two significant defenses that could apply in this case; their effect is to shield the federal government from the independent violent acts of its employees and the policy decisions that may have made those acts possible. The "discretionary function" and "assault and battery" exceptions, as they are commonly known, operate as threshold exclusions, exempting the United States from liability. (1) Often, as in the hypothetical case described above, the facts of a claim will trigger both defenses. Every claims judge advocate can benefit from understanding these defenses and knowing when to assert them.

Discretionary Function Exception to the FTCA

The FTCA's waiver of sovereign immunity is subject to several exceptions. (2) First, the government is not liable for any claim based on a government agency or employee's exercise (or failure to exercise) of a discretionary function. This exception may even apply to actions that constitute abuses of discretion. (3) In United States v. Gaubert, (4) the Supreme Court defined a two-part test for applying this exception. Initially, the test requires a determination that the challenged conduct "involves an element of judgment or choice." (5) If this prong is met, a court must then determine "whether that judgment is of the kind that the discretionary function exception was designed to shield." (6) The exception exists 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." (7)

If a regulation governs the agency action that is the subject of the claim, a court will next test the action's compliance with that regulation. If an employee disobeys a specific regulation, the action could not have been truly discretionary, and the government will not enjoy the exception's protection. (8) If a regulation gives the employee discretion, however, "the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations." (9) Courts recognize that agencies also rely on internal guidelines and policies to guide their actions; the discretionary function exception also covers decisions made under such guidelines. (10) Consistent with their traditionally strict construction of waivers of sovereign immunity, courts disfavor lawsuits against government agencies acting within their discretion. As the Supreme Court said in Gaubert, "[F]or a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." (11)

Federal circuit courts have applied Gaubert to a variety of circumstances. (12) For example, the Court of Appeals, Eleventh Circuit, has consistently applied the Gaubert test as its standard of review in cases involving the discretionary function exception. (13) It has strictly construed the test with respect to decisions covered by regulations or agency policies, stating that "the relevant inquiry is whether controlling statutes, regulations, and administrative policies mandated" the challenged conduct. (14) Further, federal employees and agencies are permitted a degree of discretion even within the general duty to abide by a rule: "Even though a statute or regulation imposes a general duty on a government agency, the discretionary function exception may still apply if the agency retains sufficient discretion in fulfilling that duty." (15)