The Discretionary Function Exception to the FTCA

At first blush, the Federal Tort Claims Act (FTCA) is a sweeping waiver of immunity for tort claims against the government. 28 U.S.C. § 2674 provides that “[t]he United States shall be liable ... [for torts] in the same manner and to the same extent as a private individual under like circumstances[.]” Flip a few pages in your trusted copy of the United States Code, however, and you will come across 28 U.S.C. § 2680—an enumeration of 13 statutory exceptions to the FTCA.

Several of the exceptions concern specific government entities or functions. Subsection (b), for example, exempts claims related to lost or negligently handled mail. Subsection (i) immunizes the Treasury from claims related to their fiscal operations or regulation of the monetary system. And if you’d like to sue the government for activities of the Tennessee Valley Authority or the Panama Canal Company, you’re out of luck.

Subsection (a) provides one of the broadest exceptions to the FTCA. It states that the government is immune from:

[a]ny 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.

Affectionately (or not, for plaintiffs) referred to as the “discretionary function exception” (DFE), this provision effectively immunizes governmental actors who commit torts while they are making a judgment call.

The Supreme Court created the Berkovitz-Gaubert test to clarify the DFE. Under the test, the DFE bars suit only if two conditions are met: (1) the acts alleged to be negligent must be discretionary, in that they involve an element of judgment or choice and are not compelled by statute or regulation and (2) the judgment or choice in question must be grounded in considerations of public policy or susceptible to policy analysis. United States v. Gaubert, 499 U.S. 315 (1991); see also Berkovitz v. United States, 486 U.S. 531 (1988). A government actor who proves that an act is discretionary enjoys a strong presumption that the “act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations” and that the second prong of the test is therefore met. Gaubert, 499 U.S. at 324.

Once the government has met its burden of proving that the DFE bars the claim, the plaintiff must show that (1) there are mandatory rules prescribing the actor’s course of action, or (2) the actor’s conduct was not “of the kind” that is “susceptible to policy analysis.” Padilla v. United States, No. LACV 09-05651, 2012 U.S. Dist. LEXIS 195217, *12-13 (C.D. Cal. Oct. 9, 2012). Where mandatory rules prescribe a government actor’s course of action, overcoming the DFE is relatively straightforward. Proving that the actor’s conduct was not of the kind susceptible to policy analysis is a more difficult task.

A comparison of cases concerning the activities of prison guards is useful in understanding when the DFE shields a government actor who commits a tort while exercising their discretion. In Alfrey v. United States, 276 F.3d 557 (9th Cir. 2002), the wife of an inmate killed by his cellmate in prison sued the prison officials, claiming that they failed to effectively investigate threats of violence the cellmate had made against her husband. The district court found, and the Ninth Circuit affirmed, that the DFE barred her claim. The Court was persuaded that a prison guard’s balancing of risks in deciding how to respond to a threat of inmate violence (i.e., personal risk to the officer versus risk of an overly intrusive search upon the inmate) and the discretion an officer must exercise in prioritizing a response to the specific risk versus “other risks that inevitably arise in a prison” implicates precisely the social and public policy considerations the DFE contemplates. Id. at 565.  

In Padilla, the plaintiff’s son was beaten to death in federal prison. Padilla, 2012 U.S. Dist. LEXIS 195217. Mr. Padilla had a history of assaults (both as the victim and the perpetrator) in a different penitentiary, and was quickly placed in the Special Housing Unit (SHU) at his newest prison. Mr. Padilla was then assaulted by a SHU inmate. Guards investigated the assault, but decided to leave him in the SHU until he could be transferred to another institution for his own safety. Mr. Padilla’s cellmate, Mr. Pena-Llanas, also had a history of violence. During their two and a half months in the same cell, they regularly fought, and Mr. Pena-Llenas asked to be transferred multiple times. Prison guards ignored reports and visible signs of their altercations. Mr. Padilla died after sustaining a kick from Mr. Pena-Llenas.

The Court found that the DFE did not bar Mr. Padilla’s father from bringing a FTCA claim against the prison guards, and distinguished the case from Alfrey because there, “the plaintiff[] did not provide any evidence showing that prison guards ignored the deceased inmate’s actual prior abuse. Instead, [that case] dealt with threats of future harm. Here there is evidence that officials ignored Padilla’s visible injuries.” Id. at *18. Further: “Decisions on whether to separate inmates in the SHU, who report problems and have a history of fighting, is not a decision that is susceptible to policy analysis. Therefore, the discretionary function exception is not applicable.” Id. At *21-22.

Ultimately, whether the DFE bars suit—particularly if a plaintiff is trying to overcome it by showing that the decision at issue was not susceptible to policy analysis—will depend on the facts of the case. Any plaintiff bringing a claim under the FTCA should be prepared for a DFE fight in their motions practice.


By Rosalie B. C. Wennberg, Esq. and Meryl E. Poulin, Esq.

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