The FTCA and Government Incentive for Poor Policy - Essay Example

?The FTCA and Government Incentive for Poor Policy In 1946, Congress passes the Federal Tort Claims Act (FTCA) in attempt to limit the scope of sovereign immunity and provide justice to those injured by and property damage caused the federal government and its employees. However, the passing of the act also contained thirteen exceptions that limit the scope of the FTCA. One of these exceptions, the Discretionary Function Exception (DFE), prevents government liability in numerous cases due to its vague use of the term discretion. This paper examines the history and creation of the FTCA, its exceptions, the role of the DFE, and concludes with suggestions INTRODUCTION: On a foggy Saturday in 1945, Lieutenant Colonel William Franklin Smith Jr. piloted a B-25 Mitchell bomber during a routine personnel transport mission. Although alerted to the sky’s zero visibility, LTC Smith proceeded to attempt to land at the LaGuardia Airport. Subsequently, the plane crashed into the north side of the Empire State Building killing fourteen people, injuring an elevator operator, and causing approximately one million dollars worth of damage (Richman 2008). As a member of the United States Military, and, therefore, a federal employee, was the government liable for the deaths and damage? Although at the time, sovereign immunity protected the government, public outrage over the B-25 Empire State Building crash paved the way for new public policy that allowed people to sue the U.S. government. Congress enacted the Federal Tort Claims Act (FTCA), in 1946, in attempt to provide justice for those injured due to government means or employees. However, the FTCA includes thirteen exemptions that restrict its use (Weaver & Longoria 2002). One in particular, the Discretionary Function Exception (DFE), seemingly exempts the government from liability in so many situation that it may render the FTCA moot. After examination of the history of the FTCA, the DFE, and case examples, it becomes clear that the DFE is too broad and defeats the purpose of the FTCA. Furthermore, alternatives exist that limit the scope of the DFE and retain the justice first sought with the creation of the FTCA. HISTORY: James Madison of the First Continental Congress proclaimed there should be limits on the United State’s sovereign immunity such that citizens had the right to make claims against the government (Weaver & Longoria 2002). Sovereign immunity is part of common law jurisdictions that dates back to English Law. It generally states that a sovereign or state cannot be charged with a criminal or civil offense. Prior to 1946, the only way to sue the government was by private bills that relied on legislative committees. However, the private bills proved to be expensive, time-costly, and frequently unjust. Nevertheless, the use of private bills continued until 1922 when Congress passed the Small Tort Claims Act. The Act authorized every federal department or establishment to process claims on private property up to one thousand dollars. This act also proved unjust as it covered property damaged by a federal employee but not a life taken by a federal employee (Weaver & Longoria 2002). Following heavy legislation and cases such as the B-25 Empire State Building Crash, the Seventy-Ninth Congress passed the FTCA as Title IV of the Legislative Reorganization Act, 60 Stat. 842. The Act states it intentions clearly: "The United States shall be liable... [for] tort claims, in the same manner and to the same extent as a private individual under like circumstances" (sec. 2674). However, the act also includes thirteen exceptions to government liability (Cohen 2007). Examination of the Discretion Function Exception provides several examples as to why the court may interpret the exceptions too broadly to be effective. THE DFE: The Discretionary Function Exception protects the government against claims "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"(Levine 2000). The DFE provides a broad interpretation for the use of the FTCA because almost also cases of government liability involve some sort of discretion. The first case against the United States using the FTCA was Elizabeth Dalehite et al v. U.S in regards to what is now know as the Texas City Disaster. In the deadliest industrial accident in U.S. history, a fire aboard the SS Grandcamp docked in the Port of Texas City detonated approximately 2,300 tons of ammonium nitrate. The resulting chain reaction of fires and explosions killed approximately 581 people (Levine 2000). Although the court originally found the government at fault, the Fifth Circuit Court of Appeals overturned the decision in 1952 stating that all the alleged acts were discretionary and therefore exempt under the DFE (Levine 2000). Several other cases show the leniency the government has with the DFE. In U.S. v. Varig Airlines, relatives of passengers who died from smoke and toxic gas inhalation aboard a Varig plane sued the federal government for negligent inspection and certification of the aircraft. The district court sided with the government in conjunction with the DFE because California law does not recognize a tort duty for inspection and certification. The Court of Appeals repealed the decision in 1982, stating that the inspection and certification process was not discretionary based on the California “Good Samaritan” rule (Weaver& Longoria 2002). The Varig case is one example of how courts can easily misconstrue the DFE for government benefit. U.S. v. Gaubert, provides further evidence of DFE leniency and the need for FTCA reform. The district court found that the DFE exempted the government for the activities of federal bank regulators in connection with a failing savings and loan association, the Independent American Savings Association (IASA). Gaubert, the chairman and largest shareholder of IASA, claimed that these activities were negligent and cost him $100 million in damages. However, the court of appeals found that while “policy decisions” fall within the exception, “operational actions” do not (Hyer 2007). The Gaubert test proves the DFE is too vague and defeats the purpose of the FTCA as it creates an incentive for governmental agencies to establish ineffective regulations in order to avoid liability. SUGGESTIONS FOR IMPROVEMENT: One of the main problems with the DFE is that the term “discretion” is too broad. An article from the Colombia Law Review, proposes an institutional reform of the FTCA that may alleviate some of the injustices. The author recommends a new administrative mechanism that assigns specific harms to a schedule of payments and limits compensation. He suggests that the model would compensate many individual cases that may be thrown out due to the DFE’s incentive to reject cases in order to decrease liability and save money (Levine 2000). The Bingham Young University Law Review suggests a new way to define discrepancy in order to reduce the latter described incentive: “First, the court would determine whether the discretionary decision was made through a legislative or administrative process. If so, the exception applies; if not, the court would move to the second step to determine whether: (1) the official taking the action was affirmatively delegated the authority to use discretion in considering specific policy factors; (2) before taking the action, the official had received training such that she was aware of the policy factors she was to consider; and (3) at the time of the action, the official had access to information to make such a policy-based decision. If the government can show that these three criteria are met under the second step, there is a rebuttable presumption that the discretionary function exception applies” (Hyer 2007). This approach would greater narrow and define the term discretion in such as manner that authorities could not purposely produce inefficient policies in order to avoid liability. CONCLUSION: Although founded on a seemingly sound goal to limit sovereign immunity, the FTCA exceptions defeat the original purpose. The most used exception, the DFE makes is more beneficial for federal authorities to create inefficient polices in order to avoid liability. As suggested by Weaver and Longoria, changes to the FTCA exceptions, specifically a more precise examination of the discretion afforded to the action, will substantiate the purpose of the act (2002). With cases such as U.S. v. Gaubert and U.S. v. Varig Airlines, and the latter recommended changes, the FTCA may provided greater justice for those injured by and property damage caused by the government. Bibliography Cohen, H, & Burrows, V. K. (2007). Federal tort claims act. Congressional Research Service, Retrieved from opencrs.com Hyer, A. (2007). The discretionary function exception to the federal tort claims act: a proposal for a workable analysis. Brigham Young University Law Review, (1091), Retrieved from http://lexusnexus.com Levine, J R. (2000). The federal tort claims act: a proposal for institutional reform. Columbia Law Review, 100(6), Retrieved from opencrs.com doi: http://www.jstor.org/stable/1123572 . Richman, J. (2008, July 28). The day a bomber hit the empire state building. Retrieved from http://www.npr.org/templates/story/story.php?storyId=92987873 Weaver, W. G., & Longoria, T. (2002). Bureaucracy that kills: federal sovereign immunity and the discretionary function exception. American Political Science Review, 96(2), Retrieved from http://www.jstor.org/stable/3118029 Read More