Kreindler Legal Library

Discretionary Function Exception

The discretionary function exception is the primary exception to the Federal Tort Claims Act (FTCA). The FTCA is the 1946 federal statute that allows private parties to sue the United States government in federal court for torts committed by federal employees in the scope of their employment. Without the Federal Tort Claims Act, the federal government would continue to enjoy sovereign immunity - immunity from lawsuits. However, FTCA waives sovereign immunity so that private citizens can sue the government for the torts. The FTCA waiver of immunity is, however, subject to 13 specific exceptions - the primary exception being the discretionary function exception.

The discretionary function exception provides that the United States is not liable for any 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.”

A discretionary function is an action of a governmental nature exercised by a federal employee, but in order for that action to be considered a discretionary function, it must pass a two-part test:

There must be an element of judgment or choice. That is, if a federal statute or regulation prescribes a course of action for an employee to follow, there is no discretion.
That judgment or choice must be susceptible to policy analysis.

The Federal Tort Claims Act contains a discretionary function exception that says the U.S. cannot be held liable for any employee’s failure to exercise or perform a discretionary duty.