Susceptible to faulty analysis: United States v. Gaubert and the resurrection of federal sovereign immunity

Notre Dame Law Review

Volumn 72, Issue 2, 1997, Pages 447-502

  Peterson, Bruce A ^a   Van Der Weide, Mark E ^b  

^a Popham Haik Schnobrich and Kaufman Ltd   (United States)

^b Cleary Gottlieb Steen and Hamilton   (United States)

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[No Author keywords available]

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EID: 21444441456     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (205)

1. See, e.g., Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) ("A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law upon which the right depends."); see also 1 WILLIAM BLACKSTONE, COMMENTARIES, *237-45. For a different view of this maxim, see Langford v. United States, 101 U.S. 341 (1880).
2. 28 U.S.C. § 2680(a) (1994).
3. See United States v. Varig Airlines, 467 U.S. 797, 811 (1984).
4. 499 U.S. 315, 325 (1991).
5. C.R.S. v. United States, 11 F.3d 791 (8th Cir. 1993).
6. See, e.g., Dalehite v. United States, 346 U.S. 15 (1953); Barry R. Goldman, Can the King Do No Wrong? A New Look at the Discretionary Function Exception to the Federal Tort Claims Act, 26 GA. L. REV. 837 (1992);
7. Harold J. Krent, Preserving Discretion Without Sacrificing Deterrence: Federal Governmental Liability in Tort, 38 UCLA L. REV. 871, 875 n.14 (1991) (citing sources).
8. See H.R. REP. NO. 77-2245, at 10 (1942); S. REP. NO. 77-1196, at 7 (1946); H.R. REP. NO. 79-1287, at 5-6 (1945); Dalehite, 346 U.S. at 29 n.21; Hearings Before the House Judiciary Comm. on H.R. 5373 and H.R. 6463, 77th Cong. 33 (1946); 2 LESTER S. JAYSON, HANDLING FEDERAL TORT CLAIMS § 246 (1993 Supp.).
9. Dalehite, 346 U.S. at 20, 27-28. The Court went on to say: "One only need read § 2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions." Id. at 32.
10. United States v. Varig Airlines, 467 U.S. 797, 813-14 (1984).
11. See, e.g., ALASDAIR MACINTYRE, AFTER VIRTUE 6-11 (1984).
12. Of course, a strong case can be made that courts should ensure that the government follows its own procedures and meets minimal standards of rationality. See, e.g., 5 U.S.C. § 706 (1994) (prescribing, inter alia, "abuse of discretion" standard for review of informal rule making and adjudications and "substantial evidence" standard for review of formal rule making and adjudications); Krent, supra note 6, at 874 n.13.
13. Varig Airlines, 467 U.S. at 814.
14. Berkovitz v. United States, 486 U.S. 531, 545 (1988). In a thoughtful decision about the application of the discretionary function exception to medical decisions, the Second Circuit discussed the need for objective standards at length and concluded that courts ought "to inquire whether state law standards can adequately evaluate the course of action contemplated by federal statute or regulation." Hendry v. United States, 418 F.2d 774, 783 (2d Cir. 1969); see also Donald N. Zillman, Regulatory Discretion: The Supreme Court Reexamines the Discretionary Function Exception to the Federal Tort Claims Act, 110 MIL. L. REV. 115, 118 (1985).
15. The Court in Hendry observed that state tort standards could not adequately control governmental decisions based on public policy rather than established professional standards or standards of general reasonableness. Id. The Court ultimately concluded that the judgment involved in that case, whether to find a merchant marine officer mentally unfit for service was "not different in kind or complexity from those which courts are accustomed to entertain when tort suits are brought against private physicians. The fact that judgments of government officials occur in areas requiring professional expert evaluation does not necessarily remove those judgments from the examination of courts by classifying them as discretionary functions under the Act." Id.; see also Jablonski v. United States, 712 F.2d 391, 397 (9th Cir. 1983) ("Courts should encounter no difficulty in evaluating the official's action, since they are experienced in deciding medical malpractice cases."); Lindgren v. United States, 665 F.2d 978, 980 (9th Cir. 1982) ("In addition to examining the level at which the act/omission occurred, this Court has also considered the ability of the judiciary to evaluate the agencys' act/omission."). Naturally, to the extent that the government activity at issue has a private sector analogue, discretionary function protection is less appropriate. Bagby and Gittings point out that the private sector analogue may limit the applicability of the discretionary function exception in cases of negligent policy implementation: "When the implementation of a discretionary policy requires activities commonly done in the private sector, and which involve little policy-based judgment, these activities should not be protected by the DFE." John W. Bagby & Gary L. Gittings, The Elusive Discretionary Function Exception from Government Tort Liability: The Narrowing Scope of Federal Liability, 30 AM. BUS. L.J. 223, 239 (1992);
16. see also Kenneth P. Purcell, A Unified Standard for Construing the Discretionary Function Exception of the Iowa Tort Claims Act, 73 IOWA L. REV. 183, 199-202 (1987).
17. The Berkovitz test is the prevailing standard for applying the discretionary function exception. See James A. Brown & John C. Anjier, Recent Developments Affecting Louisiana's Discretionary Function Exception: Will Louisiana Follow Gaubert?, 53 LA. L. REV. 1487, 1489 (1993);
18. Angela L. Martin, The Discretionary Function Exception Returns Sovereign Immunity to the Throne of Douglas County - Once Again, the King Can Do No Wrong: Jasa v. Douglas County, 28 CREIGHTON L. REV. 247, 260 (1994).
19. Berkovitz, 486 U.S. at 536.
20. Id.
21. See, e.g., In rejoint E. & S. Dists. Asbestos Litig., 891 F.2d 31 (2d Cir. 1989); In re Consolidated United States Atmospheric Testing Litig., 820 F.2d 982 (9th Cir. 1987); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 194 (2d Cir. 1987).
22. See, e.g., Zumwalt v. United States, 928 F.2d 951 (10th Cir. 1991); Valdez v. United States, 837 F. Supp. 1065 (E.D. Cal. 1993); Schmitz v. United States, 796 F. Supp. 263 (W.D. Mich. 1992).
23. See, e.g., Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1031 (9th Cir. 1989) (government built faulty canal); Arizona Maintenance Co. v. United States, 864 F.2d 1497, 1504 (9th Cir. 1988) (government used excessive amount of dynamite).
24. See, e.g., Lather v. Beadle County, 879 F.2d 365 (8th Cir. 1989); Jablonski v. United States, 712 F.2d 391 (9th Cir. 1983); Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977).
25. The Supreme Court's opinion identifies the following specific regulatory actions by FHLB-D: recommending the hiring of a consultant to advise IASA on operational and financial matters; advising IASA about whether, when, and how its subsidiary should be placed into bankruptcy; mediating salary disputes; reviewing the draft of a complaint to be used in litigation; urging IASA to convert from a state to a federal charter; actively intervening when the Texas Savings and Loan Department attempted to install a supervisory agent at IASA. Gaubert, 499 U.S. at 319-20.
26. Gaubert v. United States, No. CA3-87-2989-T (N.D. Tex. Apr. 1988).
27. Gaubert v. United States, 885 F.2d 1284, 1290 (5th Cir. 1989), rev'd and remanded, 499 U.S. 315 (1991).
28. Gaubert, 499 U.S. at 329.
29. Id. at 324.
30. Bagby and Gittings contend that the Gaubert presumption "necessarily follows" from the Gaubert premises that (1) implementation decisions that do not violate mandatory regulations are protected by the discretionary function exception; and (2) implementation decisions that do violate mandatory regulations are not protected. Bagby & Gittings, supra note 13, at 242. However, Gaubert's presumption applies to regulations allowing discretion rather than mandating conduct. The premises regarding mandatory regulations identified by Bagby and Gittings do not seem to warrant a presumption about the policy basis for government employee conduct based on discretionary rather than mandatory regulations.
31. Gaubert, 499 U.S. at 324.
32. One commentator has observed that issues surrounding the presumption will be among those that will "likely dominate the next generation of discretionary function cases following Gaubert." Goldman, supra note 6, at 848 n.62. This prophecy has not been borne out by the post-Gaubert case law. See infra Part III.
33. See Brown & Anjier, supra note 14, at 1492. But see Prescott v. United States, 973 F.2d 696, 702 n.4 (9th Cir. 1992) (stating that "Gaubert, of course, did not deal with the burden of proof question").
34. Gaubert, 499 U.S. at 325.
35. Gaubert v. United States, No. CA3-87-2989-T (N.D. Tex. Apr. 1988).
36. Gaubert v. United States, 885 F.2d 1284, 1290 (5th Cir. 1989), rev'd and remanded, 499 U.S. 315 (1991).
37. Petitioner's Brief at Section B.2.a, Gaubert (No. 89-1793).
38. Respondent's Brief at Section B, Gaubert (No. 89-1793).
39. 806 F.2d 94 (6th Cir. 1986), cert. denied, 480 U.S. 948 (1987).
40. Id. at 97-98.
41. 820 F.2d 982 (9th Cir. 1987).
42. Id. at 987.
43. Id. at 998-99.
44. Negligent and unwitting failure to recognize and address a serious peril, however, deserves no protection.
45. See Bagby & Gittings, supra note 13, at 255; Martin, supra note 14, at 255, 261.
46. 837 F.2d 116 (3d Cir.), cert. denied, 487 U.S. 1235 (1988). The Third Circuit had actually employed susceptibility analysis even before Myslakawski in Smith v. Johns-Manville Corp., 795 F.2d 301 (3rd Cir. 1986), but it offered no explanation whatsoever: "The test is not whether the government actually considered each possible alternative in the universe of options, but whether the conduct was of the type associated with the exercise of official discretion." Id. at 308-09. Thus, the General Service Administration's decision to sell surplus asbestos without warnings or warranties was protected under the discretionary function exception, even though the government produced no evidence showing that the GSA considered the health risks of asbestos in formulating its plan of sale.
47. U.S. Fidelity & Guaranty, 837 F.2d at 121 (emphasis added).
48. Id. at 122 (emphasis added).
49. The Third Circuit followed U.S. Fidelity & Guaranty two years later in Sea-Land Service Inc. v. United States, 919 F.2d 888 (3d Cir. 1990). This latter case arose from the decedent's service from 1943 to 1948 on United States ships that were built with asbestos. The case was brought under the Suits in Admiralty Act, 46 U.S.C. § 741 et seq. (1994), which the court concluded contains a discretionary function exception. Using the "susceptible to policy analysis" language from U.S. Fidelity & Guaranty, the court observed: "[W]e need not examine the record for evidence of a conscious policy decision regarding the use of asbestos in ship construction." 919 F.2d at 892. The court then observed that the matter was susceptible to policy analysis whether or not the government official failed to weigh the relevant factors. Citing Myslakowski, the court raised the same red herring invoked earlier by the Sixth Circuit: "[I]f the negligent failure of a government policy-maker to consider all relevant aspects of a matter was not within the exception, the discretionary function exception would be illusory." Id. The court reasoned that since there was a desperate need during World War II to produce ships as quickly as possible, the choice of materials necessary to accomplish that goal was certainly amenable to policy analysis. Even the use of ships with asbestos after the war presented significant questions of resource allocation that were also susceptible to policy analysis. Finally, the government's failure to warn both during and after the war of the health effects of asbestos was also susceptible to policy analysis and was a choice similar to the use of asbestos in the first place.
50. 880 F.2d 1018 (9th Cir. 1989).
51. United States v. Varig Airlines, 467 U.S. 797, 814 (1984).
52. Berkovitz v. United States, 486 U.S. 531, 545 (1988).
53. Id. at 537.
54. 924 F.2d 1210 (2d Cir. 1991), vacated, 502 U.S. 801 (1991), previous decision reinstated, 952 F.2d 652 (2nd Cir. 1991), cert. denied, 505 U.S. 1204 (1992).
55. Andrulonis, 952 F.2d at 653.
56. Andrulonis, 924 F.2d at 1219.
57. Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992). In Seyler v. United States, the plaintiff alleged that the Bureau of Indian Affairs negligently failed to maintain one of its roads in a safe condition by failing to erect speed limit signs on the road. Seyler v. United States, 832 F.2d 120, 122 (9th Cir. 1987). The Ninth Circuit said: "We can find nothing in the record to suggest that the BIA's failure to provide signs resulted from a decision 'grounded in social, economic, or political policy.'" Id. at 123 (citation omitted); see also Routh v. United States, 941 F.2d 853, 856 (9th Cir. 1991) ("The government's position, carried to its logical extreme, would allow the undercutting of a policy decision to require a safe workplace by purely economic considerations not supported in the record."); Arizona Maintenance Co. v. United States, 864 F.2d 1497, 1504-05 (9th Cir. 1989) (requiring particularized and fact-specific inquiry into whether government agent's acts or omissions flowed from choice based on social, political, and economic policy factors); ARA Leisure Servs. v. United States, 831 F.2d 193, 195 (9th Cir. 1987) (declining to hold that Park Service's decision to maintain pass in safe condition was decision grounded in social, political, or economic policy because of insufficient evidence in record of clear link between Park Service road policies and condition of pass). Interestingly, in a footnote in a case decided after Gaubert, but without citing Gaubert for the proposition, the Ninth Circuit asserted that "[t]he government, of course, need not necessarily prove that a government employee actually balanced economic, social, and political concerns in reaching his or her decision." Prescott, 973 F.2d at 703 n.5.
58. 870 F.2d 790 (1st Cir. 1989).
59. Id. at 796-800. "When the government is operating in a capacity . . . highly analogous to private industry, we doubt that the 'susceptible of discretion' analysis can protect an official's negligent failure to act without an affirmative exercise of policy judgment . . . ." Id. at 799; see also Collazo v. United States, 850 F.2d 1, 3 (1st Cir. 1988) ("But nothing in the record so far suggests that the VA Hospital's decisions were made on other than medical grounds.").
60. United States v. Gaubert, 499 U.S. 315, 335 (1991) (Scalia, J., concurring). Scalia recognized that his test, by looking not only at the decision but also at the officer who made it, once again made relevant, the planning versus operational distinction of prior case law. Although this distinction was pronounced dead by the majority opinion in Gaubert, some state courts still employ it. See, e.g., Brown & Anjier, supra note 14, at 1499; Amye Tankersley, Tennessee's Adoption of the Planning-Operational Test for Determining Discretionary Function Immunity Under the Governmental Tort Liability Act, 60 TENN. L. REV. 633 (1993).
61. At least one commentator advocates resuscitation of the distinction. See Osborne M. Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act: Time for Reconsideration, 42 OKLA. L. REV. 459 (1989).
62. Gaubert, 315 U.S. at 335 (Scalia, J., concurring).
63. Id. at 332.
64. Id.
65. Id. at 332-33.
66. Id. at 337 (citations omitted).
67. The post-Gaubert case law disproves the prediction of one commentator that Gaubert's susceptibility analysis "provides fertile ground for litigants seeking recovery in tort against the United States." Medora Marisseau, Seeing Through the Fallout: Radiation and the Discretionary Function Exception, 22 ENVTL. L. 1509, 1520-21 (1992).
68. The post-Gaubert case law also suggests that another recent commentator's survey of discretionary function exception case law underestimates the importance of Gaubert. See Donald N. Zillman, Protecting Discretion: Judicial Interpretation of the Discretionary Function Exception to the Federal Tort Claims Act, 47 ME. L. REV. 365, 372-73, 377-79 (1995).
69. In order to identify true discretionary function exception cases, we searched the Westlaw ALLFEDS database (which includes federal district court, circuit court, and Supreme Court cases) during these two time periods for cases in which the phrase "discretionary function exception" appeared either in the case syllabus or in a headnote. We excluded a few cases from this sampling because they contained no holding on a federal discretionary function issue. Our survey does not examine discretionary function exception cases after March of 1994. We expect that this more recent case law is less revealing of the true effects of Gaubert: recent case law would likely reflect the impact of Gaubert on the types of cases that plaintiffs' counsel choose to bring into the courts.
70. Most of the courts in the cases we reviewed applied the discretionary function exception on an claim-by-claim basis. Compiling the statistics on a claim-by-claim basis reveals a similar pattern. In the Berkovitz to Gaubert period, the 91 cases comprised at least 123 different discretionary function claims. The plaintiff won 40 of those claims, for a plaintiff success ratio of 33%. The 95 discretionary function exception cases decided in the three years following Gaubert involved at least 136 separate claims. The plaintiff prevailed on 26 of those claims, for a plaintiff success ratio of 19%. We have compiled our statistics on a case-by-case basis rather than a claim-by-claim basis for two reasons. First, counting the number of separate discretionary function claims in a case is a difficult task, as courts did not always distinguish closely related claims. Second, it seemed to us that a party's victory on several, closely related discretionary function claims ought not to be evaluated the same as that party's victory on unrelated discretionary function claims in several different cases.
71. Fisher Bros. Sales Inc. v. United States, 17 F.3d 647, withdrawn, 1994 WL 54992 (3d Cir. 1994), reh'g en banc granted and judgment vacated, Apr. 25, 1994 (violation by FDA laboratory technicians of FDA Regulatory Procedures Manual in testing potentially contaminated grapes); Appley Bros. v. United States, 7 F.3d 720 (8th Cir. 1993) (violation by Department of Agriculture grain inspectors of Grain Warehouse Examiner's Handbook provisions requiring check of compliance with previous citation); In re Sabin, 984 F.2d 124 (4th Cir. 1993) (violation by Department of Biological Services of standards regarding testing of polio vaccine); Tinkler v. United States, 982 F.2d 1456 (10th Cir. 1992) (violation by FAA of provisions of its Flight Services Manual regarding weather reports); Johnson v. Sawyer, 980 F.2d 1490 (5th Cir. 1992) (violation by IRS agents of taxpayer privacy statute in issuing press release regarding taxpayer's guilty plea); Philips v. United States, 956 F.2d 1071 (11th Cir. 1992) (violation by Army Corps of Engineers of Corps' Safety Manual in permitting contractor to anchor scaffold improperly); Sumner v. United States, 794 F. Supp. 1358 (M.D. Tenn. 1992) (violation by Army of internal regulations regarding warning public of areas used for target practice); Autery v. United States, 786 F. Supp. 944 (S.D. Ala. 1992) (National Park Service directive left park officials no discretion concerning removal of dangerous tree near roadway); Santa Fe Pac. Realty Corp. v. United States, 780 F. Supp. 687 (E.D. Cal. 1991) (violation by Defense Property Disposal Service of policies and procedures in selling hazardous materials without alerting buyer of special handling requirements); Wheeler Tarpeh-Doe v. United States, 771 F. Supp. 427 (D.D.C. 1991) (violation by State Department of federal regulations regarding medical care for employees overseas); Musick v. United States, 768 F. Supp. 183 (W.D. Va. 1991) (violation by Air Force pilot of mandatory squadron policy regarding minimum flying altitude); Woodman v. United States, 764 F. Supp. 1455 (M.D. Fla. 1991) (violation by Navy of contracts prohibiting disposal of acids and flammable liquids in dumpsters); Rowell v. United States, 1991 WL 120361 (S.D.N.Y. June 21, 1991) (violation by Army of contract requiring that it ensure contractors' compliance with applicable safety regulations).
72. Prescott v. United States, 973 F.2d 696, 702-03 (9th Cir. 1992) (rejecting government's claim that "everything the government does in carrying out the nuclear testing program falls within the discretionary function exception," citing previous cases that "mention the particularized and fact specific inquiry applicable to FTCA cases raising the discretionary function exception issue," and requiring the United States to prove "that each and everyone of the alleged acts of negligence (1) involved an element of judgment and (2) that judgment was grounded in social, economic or political policy."); see also Sumner Peck Ranch, Inc. v. Bureau of Reclamation, 823 F. Supp. 715, 740 (E.D. Cal. 1993) (citing the "particularized and fact specific inquiry" requirement of Prescott, and denying government's motion for summary judgment because "it provid[ed] no evidence that the [decisions causing flooding] involve an element of judgment, which was grounded in social, economic or political policy"); Marin v. United States, 814 F. Supp. 1468, 1483-84 (E.D. Wash. 1992) (rejecting government's argument that failure to warn victim threatened by informant was trade off between greater safety and greater enforcement effectiveness because of actual evidence to contrary); Patel v. United States, 806 F. Supp. 873, 878 (N.D. Cal. 1992) (rejecting government's argument that search warrant tactics furthered policy of strengthening evidentiary basis for narcotics cases because decision to use flammable tear gas projectiles resulted in total destruction of all evidence at scene).
73. Sexton v. United States, 797 F. Supp. 1292 (E.D.N.C. 1991).
74. Arkansas River Co. v. CSX Transp., 780 F. Supp. 1138 (W.D. Ky. 1991).
75. Wheeler Tarpeh-Doe v. United States, 771 F. Supp. 427 (D.D.C. 1991).
76. Ayala v. United States, 980 F.2d 1342 (10th Cir. 1992). Even this patently objective, nonpolicy decision was nearly caught in the Gaubert policy-making presumption. The district court had found that the inspector's advice on where to wire the lights was protected by the discretionary function exception because the inspector had discretion, and it must be presumed therefrom that the inspector's acts were grounded in the policies of the Mine Safety and Health Act. Ayala v. United States, 771 F. Supp. 1097, 1107 (D. Colo. 1991).
77. Mayer v. United States, 774 F. Supp. 1114 (N.D. Ill. 1991). The court noted a split of authority even as to this kind of exercise of professional judgment and decided to follow a pre-Gaubert case, Collazo v. United States, 850 F.2d 1 (1st Cir. 1988). The court did not cite Gaubert and implicitly contradicted the holding of Gaubert by requiring the government to prove actual, as opposed to hypothetical, policy considerations: "Thus the decision to release a patient will be deemed an inherently medical one unless proved otherwise." Mayer, 774 F. Supp. at 1118 (emphasis added).
78. Santa Fe Pac. Realty Corp. v. United States, 780 F. Supp. 687 (E.D. Cal. 1991).
79. 835 F. Supp. 803 (M.D. Pa. 1993).
80. Id. at 808.
81. Id. at 809.
82. Baum v. United States, 986 F.2d 716 (4th Cir. 1993). The Fourth Circuit left no doubt as to how it would interpret Gaubert: Finally, we note one further point with respect to the application of the second element of the foregoing analysis that we believe Gaubert clarified. Rather than requiring a fact-based inquiry into the circumstances surrounding the government actor's exercise of a particular discretionary function, we are of opinion that a reviewing court in the usual case is to look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one which we would expect inherently to be grounded in considerations of policy . . . . Thus, our inquiry here must focus on the inherent, objective nature of the challenged decision; we find largely irrelevant the presence or absence of evidence that involved government agents which did or did not engage in a deliberative process before exercising their judgment. Id. at 720-21; see also Baum v. United States, 765 F. Supp. 268 (D. Md. 1991).
83. Richardson v. United States, 943 F.2d 1107 (9th Cir. 1991).
84. United States v. Skipper, 781 F. Supp. 1106, 1115 (E.D.N.C. 1991). Without analysis, and with great misgivings, the court stated: "Further, the administrative decisions involving the cleanup and disposal of hazardous waste are grounded in environmental, economic and social considerations, and are just the sort of decisions the exception was designed to protect." Id. at 1114. Although compelled by the case law to decide for the government, the court in Skipper found it "inconceivable that the Government would be able to shield itself from liability for improper burial of hazardous waste." Id. at 1115.
85. United States v. Amtreco, Inc., 790 F. Supp. 1576, 1581 (M.D. Ga. 1992).
86. Flax v. United States, 791 F. Supp. 1035 (D.N.J. 1992); see also Flax v. United States, 847 F. Supp. 1183 (D.N.J. 1994).
87. Daigle v. United States, 972 F.2d 1527 (10th Cir. 1992). The court concluded: "The [EPA] administrator must balance overall priorities - in this case the need for a prompt cleanup and the mandate of safety - with the realities of finite resources and funding considerations." Id. at 1541 (emphasis added).
88. Knisley v. United States, 817 F. Supp. 680, 694 (S.D. Ohio 1993).
89. Pearson v. United States, 9 F.3d 1553 (9th Cir. 1993).
90. Mesa v. United States, 837 F. Supp. 1210, 1213 (S.D. Fla. 1993) ("We hold as a matter of law that the function of determining when and how to execute an arrest warrant is quintessentially a discretionary function, involving choices and judgments that are grounded in policy considerations.").
91. Barrett v. United States, 845 F. Supp. 774, 782 (D. Kan. 1994) ("[T]he prison regulations and the statutes with which they conform are grounded in social, political and economic policy, and, thus, decisions made in accordance with these regulations are protected by the discretionary function exception.").
92. Robinson v. United States, 849 F. Supp. 799, 805 (S.D. Ga. 1994).
93. 11 F.3d 791 (8th Cir. 1993). The following factual summary is drawn from the opinion and the Appellants' Brief and Addendum.
94. C.R.S. v. United States, 820 F. Supp. 449, 458 (D. Minn. 1993).
95. C.R.S., 11 F.3d at 797 (emphasis added).
96. Id.
97. Id. at 798 (emphasis added).
98. The use of susceptibility analysis is particularly hard to justify when the government is acting as a proprietor rather than as a regulator. Even though the government as landlord, employer, health care provider, or auto fleet manager could conceivably make decisions based on large questions of public policy, it usually tries to get the most value for the least expenditure - as would any private actor. Little is to be gained by wrapping this kind of government conduct in the cloak of susceptibility analysis.
99. C.R.S., 11 F.3d at 801.
100. Id. (emphasis added).
101. Sumner v. United States, 794 F. Supp. 1358 (M.D. Tenn. 1992) (finding violation of Army regulations requiring warnings of ammunition impact areas); Santa Fe Pac. Realty Corp. v. United States, 780 F. Supp. 687 (E.D. Cal. 1991) (finding violation of Defense Property Disposal Service policies and procedures in selling hazardous materials without alerting buyer of special handling requirements).
102. Marin v. United States, 814 F. Supp. 1468 (E.D. Wash. 1992). The court specifically determined that the government's argument regarding the need for secrecy was not established by the facts of the case or the law. The court was "satisfied that the failure to warn in this case was not due to a trade-off between greater safety and greater informant effectiveness." Id. at 1483.
103. Kiehn v. United States, 984 F.2d 1100, 1105 (10th Cir. 1993).
104. Weissich v. United States, 4 F.3d 810, 813 (9th Cir. 1993).
105. Alderman v. United States, 825 F. Supp. 742, 745 (W.D. Va. 1993).
106. Childers v. United States, 841 F. Supp. 1001, 1013 (D. Mont. 1993).
107. The remainder of the 24 failure to warn cases in our post-Gaubert sampling are Pearson v. United States, Nos. 92-15868, 92-15874, 1993 U.S. App. LEXIS 28727, at *4 (9th Cir. Oct. 28, 1993); Shively v. United States, No. 92-16354, 1993 U.S. App. LEXIS 21094, at *4 (9th Cir. Aug. 18, 1993); Layton v. United States, 984 F.2d 1496, 1504 (8th Cir. 1993); Daigle v. Shell Oil Co., 972 F.2d 1527, 1537-38 (10th Cir. 1992); Johnson v. United States Dep't of Interior, 949 F.2d 332, 338 (10th Cir. 1991); Lockett v. United States, 938 F.2d 630, 638 (6th Cir. 1991); Bergquist v. National Weather Serv., 849 F. Supp. 1221, 1228 (N.D. Ill. 1994); Valdez v. United States, 837 F. Supp. 1065, 1067-68 (E.D. Cal. 1993); Koch v. United States, 814 F. Supp. 1221, 1231 (M.D. Pa. 1993); Lesoeur v. United States, 858 F. Supp. 974, 978 (D. Ariz. 1992), aff'd, 21 F.3d 965, 970 (9th Cir. 1994); Mellott v. United States, 808 F. Supp. 746, 750 (D. Mont. 1992); Fahl v. United States, 792 F. Supp. 80, 83 (D. Ariz. 1992); Hale House Ctr., Inc. v. FDIC, 788 F. Supp. 1309, 1313 (S.D.N.Y. 1992); Richardson v. United States, 776 F. Supp. 1373, 1380 (W.D. Ark. 1991); and the two C.R.S. decisions.
108. The number of cases in our two samples is slightly reduced from the number of cases used in the overall plaintiff success ratio analysis set forth earlier in Part III. Our samples include a few cases decided initially by a trial court and then subsequently by an appellate court. We counted such cases twice for purposes of computing the plaintiff success ratio because two distinct courts were analyzing the claims. We counted such cases only once in the "incidence of trial" analysis above, for obvious reasons.
109. But see William P. Kratzke, The Supreme Court's Recent Overhaul of the Discretionary Function Exception to the Federal Tort Claims Act, 7 ADMIN. L.J. AM. U. 1, 52-57 (1993).
110. The famous case of Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884) addressed the moral dilemma faced by those in such a desperate situation. Although the court sentenced Dudley and Stephens to death for killing and eating one of their young shipmates, the Crown commuted the sentence to six months' imprisonment. Perhaps Queen Victoria was touched by Chief Justice Coleridge's admission: "We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy." Id. at 288. For an extensive discussion of the Dudley & Stephens case, see A.W. BRIAN SIMPSON, CANNIBALISM AND THE COMMON LAW (1984). The tactic of Dudley & Stephens is aesthetically (and arguably morally) less palatable than, but economically indistinguishable from, situations where the victims are selected by some random process - an "accident" - rather than deliberately singled out.
111. U.S. CONST. amend. V.
112. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1013 (1992); Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987); Loretto v. Telepromptor Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Agins v. City of Tiburon, 447 U.S. 255, 260 (1980); Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 82 (1980); Penn Cent. Transp. Co. v. New York, 438 U.S. 104, 123-24 (1978); United States v. Causby, 328 U.S. 256, 265-66 (1946); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 401 (1922); Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 179-80 (1871).
113. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 50 (3d ed. 1986).
114. There are other rationales for the takings clause. Professor Michelman has suggested that failure to compensate adversely affected property owners would demoralize them and cause people to underinvest in property development. Frank I. Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967).
115. Professors Blume and Rubinfeld have argued that just compensation is necessary because of human risk aversion. Lawrence Blume & Daniel L. Rubinfeld, Compensation for Takings: An Economic Analysis, 72 CAL. L. REV. 569 (1984). Posner doubts both of these rationales because of the existence of well developed insurance markets. If eminent domain insurance were available and the government decreed that it would no longer pay compensation to the victims of eminent domain, people would neither fear eminent domain nor become demoralized if they were the subjects of eminent domain. POSNER, supra, at 50.
116. POSNER, supra note 107, at 51.
117. Id. at 52-53.
118. Hudson v. Palmer, 468 U.S. 517 (1984). The following analysis in the text ignores the distinction between "harmful externalities" and the "taking of things." See Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 HARV. L. REV. 713, 719-23, 771-73 (1996). It is not our task to determine the proper remedy for government encroachments (the context in which such distinction is germane), only to determine when citizens deserve a remedy.
119. See Daniels v. Williams, 474 U.S. 327,-333 (1986) ("[I]njuries inflicted by governmental negligence are not addressed by the United States Constitution . . . ."). If the language in Daniels is interpreted literally, it seems to imply that: an individual [has] no constitutional right to just compensation when agents of the state negligently destroyed his property, regardless of the extent of loss or the nature of the state activity. For example, assume that a state employee negligently drove a truck filled with flammable liquids off the highway and crashed into a house, destroying the house and all persons therein. Could any surviving members of the family that owned the house be denied all compensation for the loss of their property and the lives of their family members due to a state sovereign immunity law? Literal application of the statement in Daniels would mean that a state doctrine of sovereign immunity could totally defeat any claim for just compensation in such a case. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 443 (4th ed. 1991). Nowak and Rotunda suggest that courts use a case-by-case approach to determine "whether the negligence of government employees had so unfairly shifted social costs (such as the cost for the societal benefit from the state agency that employed the truck driver) to an individual or a limited group of individuals (the property owners and family members in our hypothetical) that the unintended harm to the individual or group of individuals constituted a taking for which just compensation was required." Id.
120. See Daniels, 474 U.S. at 331-33.
121. GUIDO CALABRESI, THE COSTS OF ACCIDENTS 26 (1970).
122. Professor Kratzke puts it this way: "Tort law searches for the combination of greatest precautions whose marginal cost is less than the marginal reduction in expected accident costs." Kratzke, supra note 103, at 5 & nn.14-19; see also Goldman, supra note 6, at 856; Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972).
123. CALABRESI, supra note 113, at 70. Calabresi also thinks that sometimes specific deterrence - i.e., collectively imposed penalties or subsidies or prohibitions of certain activities - is necessary to reduce the sum of accident costs and their avoidance. Id. at 95-96.
124. See Goldman, supra note 6, at 856-58; Krent, supra note 6, at 872, 884-85.
125. The history of government liability is also full of outdated justifications for protecting the sovereign. In the following discussion in the text, we disregard most of the hoary roots of sovereign immunity, which are either rotten or at least inapplicable to twentieth-century America. Among these are: (1) the indignity of subjecting the government to suit, see In re Ayers, 123 U.S. 443, 505 (1887); (2) the theory that there is no legal right against a lawmaker, see Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (Holmes, J.); (3) the need to protect the public treasury, see Goldman, supra note 6, at 854-56; (4) the flood of frivolous litigation against the government that could overwhelm the federal courts, see Roger C. Cramton, Non-Statutory Review of Federal Administrative Action, 68 MICH. L. REV. 389, 427-28 (1970) (rebutting argument by pointing out that frivolous suits against government have defects other than that they are against government and that empirically, no flood has occurred in past as sovereign immunity has been repealed piecemeal);
126. James Samuel Sable, Note, Sovereign Immunity: A Battleground of Competing Considerations, 12 SW. U. L. REV. 457, 467-68 (1981) (same);
127. the metaphysical theory that the king can do no wrong, see Joseph D. Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 HARV. L. REV. 1060, 1060 (1946).
128. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). Kratzke points out that although this formula may appear to require a degree of precision that can never be attained, the formula does not require absolute measurement of costs, but rather the comparison of costs and benefits. Where one or another of the variables is very high or very low, a court can say with some certainty whether conduct was unreasonable. Kratzke, supra note 103, at 6.
129. POSNER, supra note 107, at 148-49.
130. Id. at 154.
131. Of course, the magnitude of loss must also be measurable. There are strong reasons to think, however, that such magnitudes are generally measurable. Our society routinely quantifies even the value of a human life. The science of making such quantifications is called hedonics. See generally W. GARY BAKER & MICHAEL K. SECK, DETERMINING ECONOMIC LOSS IN INJURY AND DEATH CASES (2d ed. 1993) (explaining how economists and courts calculate value of human lives and body parts).
132. See Kratzke, supra note 103, at 5-7, 11.
133. See PETER SCHUCK, SUING GOVERNMENT 114 (1983);
134. United States v. Varig Airlines, 467 U.S. 797, 814 (1984) ("This emphasis upon protection for regulatory activities suggests an underlying basis for the inclusion of an exception for discretionary functions in the Act: Congress wished 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."); Goldman, supra note 6, at 852-53; cf. Osborne M. Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 GEO L.J. 81, 122 (1968) (contending that judges do not have necessary resources or expertise to make policy).
135. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971); Abbott Lab. v. Gardner, 387 U.S. 136, 141 (1967); THE FEDERALIST No. 78 (Alexander Hamilton); ROBERT H. BORK, THE TEMPTING OF AMERICA (1990).
136. Harold J. Krent, Reconceptualizing Sovereign Immunity, 45 VAND. L. REV. 1529, 1540 (1992).
137. See 5 U.S.C. § 553 (1994) (detailing requirements of informal rule making); id. § 706 (1994) (prescribing abuse of discretion standard of review for informal agency decisions); see also Motor Vehicle Mfr. Ass'n of United States, Inc. v. State Farm Mut. Ins. Co., 463 U.S. 29 (1983); Automotive Parts & Accessories Ass'n v. Boyd, 407 F.2d 330 (D.C. Cir. 1968).
138. See 5 U.S.C. §§ 556-57 (1994) (detailing requirements of formal rule making); id. § 706 (1994) (prescribing substantial evidence standard of review for formal agency decisions); see also Wirtz v. Baldor Elec. Co., 337 F.2d 518 (D.C. Cir. 1963).
139. See, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976); Goldberg v. Kelly, 397 U.S. 254 (1970).
140. See, e.g., United States v. Florida East Coast Ry. Co., 410 U.S. 224 (1973).
141. Krent, supra note 6, at 873-74, 889-94. Krent suggests imposition of a "deliberation" requirement for applicability of the discretionary function exception. Id. at 906. We believe that such a requirement too greatly restricts agency flexibility. Many desirable agency decisions are not the product of sustained debate within the agency; they are the result of a single individual's reflection and considered judgment. Moreover, all deliberated agency decisions should not obtain immunity. An agency might undertake professional deliberation rather than policy deliberation; and professional deliberation might reach an objectively "wrong" outcome. See infra Part IV.D.3.
142. For example, in C.R.S. v. United States, 11 F.3d 791 (8th Cir. 1993), the inadequate civilian blood screening procedures that permitted D.B.S. to be infected with the AIDS virus were mechanically promulgated, without administrative review, by a non-political career Navy officer in the Pentagon. Many torts of the federal government are the result of "non-decisions," the failure of agency employees to address a particular danger, and thus are matters which slipped through the administrative process entirely. The First Circuit in Dube v. Pittsburgh Corning understood this point: "Without an actual decision to forgo protecting or warning domestic bystanders, it is difficult to determine whether even the Navy would consider such a decision a permissible or impermissible exercise of policy judgment." Dube v. Pittsburgh Corning, 870 F.2d 790, 799-800 (1st Cir. 1989).
143. Of course, individuals or groups of individuals commit the torts for which the government is held liable, and under current law, tort suits against employees of the United States who are acting within the scope of their employment are deemed to be suits against the United States. See 28 U.S.C. § 2679 (1994). If the government passes on the costs of tort liability to the individual tortfeasors (whether financially or in some other fashion), government agents will certainly not make decisions vigorously. Government officials, because of the special nature of the public sector, are excessively risk-averse if faced with potential punishment for their torts. Government officials interact with the public frequently, often serve conflicting and ambiguous goals, often have a duty to act, often suffer the risk of misinterpreting the directives of their superiors, and often face administrative constraints on their decision making. They will consequently behave risk-aversely. Public officials are capable of shifting costs to the public in this manner without detection because many official decisions are unavoidably discretionary and of low visibility. See SCHUCK, supra note 122, at 68-71; see also Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509, 566-76, 602-06 (1986).
144. See, e.g., Goldman, supra note 6, at 853-54; Krent, supra note 6, at 872, n.6; see also Jerry Mashaw, Civil Liability of Government Officers: Property Rights and Official Accountability, 42 LAW & CONTEMP. PROBS. 8 (1978).
145. Government agencies are not like private firms in an important respect: "As a non-profit maximizing actor, the government does not respond as directly to monetary signals." Krent, supra note 124, at 1539. One might argue that an additional reason to preserve some form of sovereign immunity is that because damage awards against the government are usually not taken out of the guilty agency's budget, particular agencies do not pay for the costs of the torts they commit, even where sovereign immunity has been abrogated. See 31 U.S.C. § 1304 (1994) (stating that Congress appropriates whatever amounts are necessary to pay final judgments against the United States resulting from suits under FTCA). Consequently, even in a world without sovereign immunity, agencies would have little direct financial incentive to behave with reasonable care. Of course, this problem in the incentive system can be resolved by simply forcing agencies to pay the price of their torts. But see SCHUCK, supra note 122, at 104-07 (arguing that even if agencies had to pay for their torts, since budgets for agencies are not set through rational processes - but rather through political influence or log rolling - an agency's budget might be continually restored, even in face of extensive tort payments). Even without this sort of legal reform, however, paying tort judgments, particularly repeated tort judgments, must have some impact on government conduct, even if agencies do not directly lose funds in proportion to the extent of their misbehavior.
146. See Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951).
147. See RESTATEMENT (SECOND) OF TORTS §§ 519-524A (1965) (ultrahazardous activities); id. at §§ 388-408 (products liability); PROSSER & KEETON, THE LAW OF TORTS 545-68 (1984) (ultrahazardous activities);
148. id. at 690-724 (products liability); id. at 565-80 (workers' compensation); DANIEL B. DOBBS, TORTS AND COMPENSATION 740-92 (1985) (workers' compensation).
149. See, e.g., CALABRESI, supra note 113; Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 YALE L.J. 1055 (1972);
150. Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973).
151. See Rayonier, Inc. v. United States, 352 U.S. 315, 319-20 (1957) (stating explicitly the advantages of shifting losses to public as whole because public enjoys benefits of government services); Allen v. United States, 816 F.2d 1417, 1424 (10th Cir. 1987) (McKay, J. concurring) (indicating collective citizenry, not isolated individual should bear economic burden); Goldman, supra note 6, at 857 ("Shifting the costs of such injuries to the public as a whole creates a relatively slight burden to each taxpayer, and forces all those benefitting from the injury-causing activity to pay a portion of the damages caused."); William P. Kratzke, The Convergence of the Discretionary Function Exception to the Federal Tort Claims Act With Limitations of Liability in Common Law Negligence, 60 ST. JOHN'S L. REV. 221, 280 (1986).
152. George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537, 547-48 (1972).
153. Steven Shavell, Strict Liability vs. Negligence, 9 J. LEGAL STUD. 1 (1980); POSNER, supra note 107, at 161. Posner provides a good example of how strict liability can contribute to macroefficiency: "Suppose railroads and canals are good substitutes in transportation, but railroads inflict many accidents that cannot be avoided by being careful and canals none. Were it not for these accident costs, railroads would be 10 percent cheaper than canals, but when these accident costs are figured in, railroads are actually 5 percent more costly. Under a rule of negligence liability, railroads will displace canals even though they are the socially more costly method of transportation." Id.
154. POSNER, supra note 107, at 162.
155. Id. at 163.
156. See Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir. 1992); Redland Soccer Club v. United States, 835 F. Supp. 803 (M.D. Penn. 1993), aff'd in part, rev'd in part, 55 F.3d 827 (3d Cir. 1995), cert. denied, 116 S. Ct. 772 (1996); Santa Fe Pac. Realty Corp. v. United States, 780 F. Supp. 687 (E.D. Cal. 1991).
157. See C.R.S. v. United States, 11 F.3d 791 (8th Cir. 1993); Knisley v. United States, 817 F. Supp. 680 (S.D. Ohio 1993).
158. See Layton v. United States, 984 F.2d 1496 (8th Cir. 1993).
159. A chief advantage of strict liability is that it shifts the costs of injuries to the injury-producing activity, without requiring a procedural mechanism for ascertaining fault. Difficult fault questions, however, are replaced by difficult causation questions. For example, does the government's military decision to move the American fleet out of the South Pacific make it liable in tort to the American businessman whose Philippines' operation is wiped out by a subsequent Japanese invasion? On the other hand, the argument of many against strict governmental liability - that it would bankrupt the country - is not as big a problem as it may seem. As with workers' compensation, it might be appropriate to impose statutory damages schedules in exchange for lifting plaintiffs' burden of establishing fault. In effect, this is how the government treats its servicemen - ordinarily they cannot sue, but they and their families are entitled to Veterans' Administration benefits. See 38 U.S.C. §§ 1101-1163, 1701-1764 (1994); see also Feres v. United States, 340 U.S. 135, 146 (1950) (holding that FTCA does not waive United States' sovereign immunity "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.").
160. See United States v. Gaubert, 499 U.S. 315, 325 (1991); David S. Fishback & Gail Killefer, The Discretionary Function Exception to the Federal Torts Claims Act: Dalehite to Varig to Berkovitz, 25 IDAHO L. REV. 291, 299-300 (1988-89);
161. Donald N. Zillman, Congress, Courts, and Government Tort Liability: Reflections on the Discretionary Function Exception to the Federal Tort Claims Act, 1989 UTAH L. REV. 687, 730-31.
162. Of course, the Gaubert test has procedural as well as substantive ramifications. It permits the government to prevail without submitting evidence of an actual policy decision. Thus, in at least some of the many decisions dismissing plaintiffs' causes of action because of hypothetical policy factors, the decisionmaker may indeed have engaged in policy balancing. It is more likely, however, that if the government had such evidence, it would produce it.
163. Several other commentators have recognized the value of imposing an actual policy choice requirement on government agents seeking to obtain discretionary function immunity. None of these commentators attempt to explain or provide justification for the requirement though. See Bagby & Gittings, supra note 13, at 254-55; Marisseau, supra note 62, at 1521-22, 1537-38. Bagby and Gittings make a "consciously considered decision weighing or balancing competing policy factors" one of the elements of their two-phase inquiry. Bagby & Gittings, supra note 13, at 253. Bagby and Gittings also recognize that the discretionary function exception should protect a failure to act only where the course of inaction occurred as a result of a conscious balancing of risks and benefits. They do not lay out their preference for conscious deliberation in detail, however, except to say that, "quick, ill-conceived judgments that at best poorly evaluate broad governmental policy matters should not be immune." Id. at 255. The consciously considered decision of Bagby and Gittings is a very different animal from the actual policy decision we would require. Bagby and Gittings require agency decisionmakers to conduct a "careful evaluation of alternatives." They contend that "quick, ill-conceived judgments" that poorly evaluate relevant policy factors should not be immune, and that agencies must "fully consider and document ad hoc decisions." Id. They analogize the "hard look" standard under the APA to their proposed "considered decision" standard for the discretionary function exception. Id. at 264-65 (citing Pacific States Box & Casket Co. v. White, 296 U.S. 176 (1935); Portland Cement Ass'n v. Train, 513 F.2d 506 (D.C. Cir. 1975); Automotive Parts & Accessories Ass'n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968)). Our approach is much simpler and does not ask judges to make difficult distinctions between careful and non-careful evaluation, ill-conceived and well-conceived judgments, and full and partial consideration of policy factors.
164. Professor Krent's "process approach" to the discretionary function exception requires that the government action result from agency deliberation in order to obtain immunity. Krent, supra note 6, at 906. We believe that Krent's approach places too high of a burden on the government. If government agents were forbidden from acting in the absence of full agency deliberation, government agencies would be hamstrung in their efforts to carry out their missions wisely and expeditiously. We recognize that our approach also places a burden on government actors to document the rationales for their choices, but we believe that the increased burden is worth bearing for the reasons set forth in this Part of the Article. But see Zillman, supra note 62, at 387-88.
165. The First Circuit in Dube understood that "where there is no policy judgment, courts would be 'second guessing' by implying one." Dube v. Pittsburgh Corning, 870 F.2d 790, 800 (1st Cir. 1989).
166. See, e.g., Industrial Indem. Co. v. Alaska, 669 P.2d 561, 566 (Alaska 1983).
167. Johnson v. State, 447 P.2d 352, 361 n.8 (Cal. 1968). A host of other California cases rely on this point of law. See, e.g., Sumner Peck Ranch, Inc. v. Bureau of Reclamation, 823 F. Supp. 715, 723-24 (E.D. Calif. 1993); Ramos v. County of Madera, 484 P.2d 93, 98 (Cal. 1971); Ebarb v. County of Stanislaus, 246 Cal. Rptr. 845, 851 (Ct. App. 1988); Holman v. State, 124 Cal. Rptr. 773, 785-86 (Ct. App. 1975); Elton v. County of Orange, 84 Cal. Rptr. 27, 31 (Ct. App. 1970).
168. King v. City of Seattle, 525 P.2d 228, 233 (Wash. 1974).
169. Little v. Utah State Div. of Family Servs., 667 P.2d 49, 51 (Utah 1983).
170. Kolitch v. Lindedahl, 497 A.2d 183, 197 (N.J. 1985); Costa v. Josey, 415 A.2d 337, 342 (N.J. 1980); Pacifico v. Froggatt, 591 A.2d 1387, 1389 (N.J. Super. Ct. Law Div. 1991).
171. Greathouse v. Armstrong, 616 N.E.2d 364, 367 (Ind. 1993); Peavler v. Board of Comm'rs, 528 N.E.2d 40, 46 (Ind. 1988).
172. Nusbaum v. County of Blue Earth, 422 N.W.2d 713, 722 (Minn. 1988); Schaeffer v. State, 444 N.W.2d 876, 879-81 (Minn. Ct. App. 1989).
173. Little v. Wimmer, 739 P.2d 564, 568-69 (Or. 1987); Bradford v. Davis, 626 P.2d 1376, 1382 (Or. 1981); Stevenson v. State, 619 P.2d 247, 254 (Or. 1980).
174. Biloon's Elec. Serv., Inc. v. City of Wilmington, 401 A.2d 636, 641 (Del. Super. Ct. 1979), aff'd, 417 A.2d 371 (Del. 1980).
175. State Div. of Workers' Compensation v. Blaylock, 805 P.2d 1272, 1277-78 (Mont. 1990) (discussing common law "quasi-judicial" immunity by analogizing same to discretionary function immunity under FTCA).
176. Fowler v. Roberts, 556 So. 2d 1, 13-16 (La. 1989).
177. Breed v. Shaner, 562 P.2d 436, 442 (Haw. 1977).
178. Johnson v. State, 447 P.2d 352, 360 (Cal. 1968).
179. Johnson, 447 P.2d at 361 n.8. Some commentators have argued that Johnson's requirement that a government decision be accompanied by a conscious balancing of policy factors stems from the particular phrasing of the California Code's discretionary function exception. See, e.g., Harrison v. Escambia County School Board, 419 So.2d 640, 649 n.13 (Fla. Dist. Ct. App. 1982). California Gov't Code § 820.2 (West 1995) provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Although § 820.2 expressly immunizes only the employee, § 815.2(b) states that if the employee is immune, so too is the state or county. This text is different from that of the Federal Tort Claims Act (FTCA), which holds, in part, that the government 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 be abused." 28 U.S.C. § 2680(a) (1994). Nevertheless, there are excellent reasons to suppose that the outcome in Johnson was not driven by the court's semantic formalism. First, although the two statutes use distinct language, the distinction seems to be without a difference. What could be the real difference between "an act or omission that is the result of the exercise of discretion" and "the exercise or performance or the failure to exercise or perform a discretionary function"? Second, the Johnson court, throughout its opinion, analogized
180. See Goldman, supra note 6, at 859-60; Bagby & Gittings, supra note 13, at 230-32; Marisseau, supra note 62, at 1528.
181. Cf. D. Scott Barash, The Discretionary Function Exception and Mandatory Regulations, 54 U. CHI. L. REV. 1300 (1987) (arguing that negligent execution of mandatory regulations should not receive discretionary function immunity); Berkovitz v. United States, 486 U.S. 531, 545 (1988) (same).
182. For example, in Ayala v. United States, 771 F. Supp. 1097 (D.D.C. 1991), an electrical inspector of the Mine Safety and Health Administration gave incorrect technical assistance to a mining company about where to wire in add-on lights to a coal mining machine. Fifteen men died in the resulting explosion of methane and coal dust. The district court applied the discretionary function exception based upon the presumption that the decision was made in furtherance of Federal Mine Safety and Health Act regulations promulgated to protect the health and safety of the miners. Aside from the fact that there was no evidence in the record that such factors made any difference at all in the inspector's decision, it would appear highly unlikely that anyone in the Mine Safety and Health Administration would have given authority to a technical inspector to disregard objective technical factors in favor of lofty policy considerations when addressing an electrical question. The Tenth Circuit reversed the trial court's decision on the grounds that such a technical decision was not susceptible to policy analysis. Ayala v. United States, 980 F.2d 1342 (10th Cir. 1992); see also Doolin v. United States, No. 93-2377, 1994 WL 233829 (N.D. Ill. May 23, 1994) (immunity granted to HUD realty specialist who never visited property in order to monitor independent contractor boarding up windows); Robinson v. United States, 849 F. Supp. 799 (S.D. Ga. 1994) (immunity granted to decision of postal employee who accepted package tied with string in violation of post office rules; package ultimately turned out to be fatal letter bomb); Mesa v. United States, 837 F. Supp. 1210 (S.D. Fla. 1993) (immunity granted to DEA agents who executed arrest warrant on wrong person); Flax v. United States, 791 F. Supp. 1035 (D.N.J. 1992) (immunity granted to decisions made by FBI agents who allegedly conducted surveillance of kidnapping victim negligently, resulting in death of victim).
183. United States v. Gaubert, 499 U.S. 315, 335 (1991) (Scalia, J., concurring).
184. In a sense, this limitation flows directly from the Supreme Court's Berkovitz decision: "[A]pplication of the discretionary function exception . . . hinges on whether the agency officials . . . permissibly exercise policy choice." Berkovitz, 486 U.S. at 545 (emphasis added).
185. See Kratzke, supra note 103, at 21; Gaubert, 499 U.S. at 324-25 ("For 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." (emphasis added)); cf. id. at 324 ("On the other hand, if a regulation allows the employee discretion, 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." (emphasis added)); id. ("[I]f a regulation mandates particular conduct, and the employee obeys the direction, the Government will be protected because the action will be deemed in furtherance of the policies which led to the promulgation of the regulations." (emphasis added)).
186. United States v. Varig Airlines, 467 U.S. 797, 820 (1984); see also Berkovitz v. United States, 486 U.S. 531, 540-44 (1988); Hatahley v. United States, 351 U.S. 1973, 1981 (1956); Prescott v. United States, 959 F.2d 793, 795-96 (9th Cir. 1992); Roberts v. United States, 887 F.2d 899, 901 (9th Cir. 1989); Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1196-97 (D.C. Cir. 1986); Jayvee Brand v. United States, 721 F.2d 385, 389 (D.C. Cir. 1983); Birnbaum v. United States, 588 F.2d 319, 329 (2d Cir. 1978); Griffin v. United States, 500 F.2d 1059, 1068-69 (3d Cir. 1974).
187. Bagby and Gittings propose that "a reviewing court must determine that legislative authority is delegated to the agency to exercise public policy discretion." They point out that an actual record of delegation of policy-making authority to lower level employees is necessary to prevent what they call a "false policy" problem, i.e., boiler-plate delegations of minor policy-making authority and the peppering of internal memoranda with policy wording to bring activities within the protected zone. Bagby & Gittings, supra note 13, at 230. Goldman also advocates an authorization inquiry. He observes that the person implementing the vaccination approval program of Berkovitz was not authorized to make policy determinations as to whether those procedures were the most cost efficient or safe methods possible. Goldman observes that authorization is another way of checking to see that the first test in Berkovitz is met. Goldman, supra note 6, at 859-60.
188. Courts in discretionary function exception cases have frequently examined the relevant official's policy-making authority. See, e.g., Begay v. United States, 768 F.2d 1059, 1065 (9th Cir. 1985); McMichael v. United States, 751 F.2d 303, 307 (8th Cir. 1985).
189. See supra Part IV.A.
190. C.R.S. v. United States, 11 F.3d 791, 801 (8th Cir. 1993).
191. Knisley v. United States, 817 F. Supp. 680, 694 (S.D. Ohio 1993). This decision is particularly ironic because, just prior to finding the claim barred by the discretionary function exception and thus, in essence, challenging conduct that courts are not equipped to evaluate, the court evaluated the substance of the claim at length and concluded that the plaintiff had failed to establish the standard of care from which the Army deviated. The same irony is found in Barrett v. United States, 845 F. Supp. 774 (D. Kan. 1994), which considered a claim that the failure to investigate threats against an inmate by prison Muslims resulted in his death. The court decided that, "[b]alancing the concerns of inmate security with the right of a prisoner to circulate and socialize with some degree of freedom within the general population of a prison is a matter that, without doubt, involves many policy considerations." Id. at 782. Not only does the management of an inmate population appear to involve primarily professional judgments rather than policy considerations, but just prior to reaching its conclusion the court made extensive findings of fact regarding the merits of the claim and concluded that failure to investigate or to segregate the victim was not the proximate cause of his death.
192. Richland-Lexington Airport Dist. v. Atlas Properties, Inc., 854 F. Supp. 400, 423 (D.S.C. 1994). Even though every item the court listed is eminently quantifiable, the court concluded that these factors "indisputedly [reveal] that the EPA's stockpiling of contaminated dirt involved considerations based on public policy . . . ." Id.
193. Layton v. United States, 984 F.2d 1496, 1502 (8th Cir. 1993). The court went on to conclude that the Forest Service's decision to cut trees on steep slopes rather than girdle them was insulated because Forest Service technicians rely on their experience and judgment in such matters "in order to further the Forest Service's policy of improving timber quality and in deciding which treatment methods will best serve those goals." Id. The court confused policy making with professional judgment.
194. Shively v. United States, No. 92-16354, 1993 WL 312758, at *2 (9th Cir. Aug. 18, 1993). These factors fit nicely into the Hand negligence formula.
195. See Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (1981) and Exec. Order No. 12,498, 50 Fed. Reg. 1036 (1985).
196. See, e.g., Routh v. United States, 941 F.2d 853, 856 (9th Cir. 1991) ("The government's position, carried to its logical extreme, would allow the undercutting of a policy decision to require a safe workplace by purely economic considerations not supported in the record."); Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1031 (9th Cir. 1989) (mere recitation of budget constraints will not obtain discretionary function protection for the government because "virtually all government actions affect costs since action itself requires resources"); ARA Leisure Servs., 831 F.2d at 195-96 ("Finally, the fact that Park Service maintenance personnel were required to work within a budget does not make their failure to maintain the Thoroughfare Pass a discretionary function for purposes of the FTCA. . . . Budgetary constraints underlay virtually all government activity."); Smith v. United States, 375 F.2d 243, 248 (5th Cir. 1967) ("The United States is immune from liability in the present case not because of the mere fact that government officials made choices, but because the choices made affected the political (not merely the monetary) interests of the nation."). Some courts and at least one commentator have suggested the rule that a decision based solely on budgetary constraints or cost consideration should not be deemed a permissible exercise of policy judgment. See Kennewick, 880 F.2d at 1024; ARA Leisure Servs., 831 F.2d at 195; Marisseau, supra note 62, at 1524-25. Bagby and Gittings also opine, though without any accompanying elucidation, that mere consideration of economic factors should not be sufficient to invoke discretionary immunity. They state: "[c]ourts . . . are criticized for protecting government decisions on the mere showing that cost was a considered factor, given that most government decisions have an economic consequence." Bagby & Gittings, supra note 13, at 252 n.125; see also Rayonier, Inc. v. United States, 352 U.S. 315, 319 (1957) (holding that "having a burden on the public treasury" alone should not be sufficient justification for protecting government); Robert D. Thorton, Federal Tort Claims: A Critique of the Planning Level - Operational Level Test, 11 U.S.F. L. REV. 170, 195-96 (1976); infra Part IV.D.3.
197. C.R.S., 11 F.3d at 797. The Army in C.R.S. neither offered any evidence that cost considerations affected its selection of screening procedures nor provided any estimate of the costs of the screening procedures advanced by the plaintiffs. Thus, the claim was dismissed on a purely hypothetical basis.
198. Id. at 801. Again, the Army provided the court with no relevant evidence regarding cost.
199. Daigle v. Shell Oil Co., 972 F.2d 1527, 1541 (10th Cir. 1992); see also Johnson v. United States Dep't of Interior, 949 F.2d 332, 337 (10th Cir. 1991) (decisions about how to regulate mountain climbing in Grand Teton National Park "involve balancing competing policy considerations pertaining to visitor safety, resource availability, and the appropriate degree of governmental interference in recreational activity.").
200. Brown v. United States, No. 92-CV-828, 1994 WL 319015, at *14 (W.D.N.Y. June 8, 1994).
201. Pope & Talbot, Inc. v. United States Dep't of Agric., 782 F. Supp. 1460, 1467 (D. Or. 1991). The court identified the balancing required of the Forest Service to be "the public's need for open forests and the costs entailed with closing the forests against the danger of fire." Id. at 1465. As noted in the text above, such precaution costs are the focus of negligence analysis, not immunity.
202. Koch v. United States, 814 F. Supp. 1221, 1230 (M.D. Pa. 1993).
203. Autery v. United States, 992 F.2d 1523, 1531 (11th Cir. 1993). The extent to which the natural state of the forest should be preserved is a genuine policy variable; the significance of that factor in a roadway inspection program, however, appears questionable. The "limited financial and human resources available" factor is merely the cost element of the Hand formula. It is the "need for other safety programs" that raises the question of competing priorities discussed in the text below. See also Fahl v. United States Dep't of Interior, 792 F. Supp. 80, 83 (D. Ariz. 1992).
204. Layton v. United States, 984 F.2d 1496, 1504 (8th Cir. 1993). This is actually a very nice formulation of the Hand negligence formula. On the continuum set forth by the court, the Forest Service would be negligent until the marginal cost of discovering and warning of additional dangers exceeded the safety benefits. See also Bergquist v. United States Nat'l Weather Serv., 849 F. Supp. 1221, 1228 (N.D. Ill. 1994); Childers v. United States, 841 F. Supp. 1001, 1016 (D. Mont. 1993); Knisley v. United States, 817 F. Supp. 680, 694 (S.D. Ohio 1993); Webster v. United States, 823 F. Supp. 1544, 1551 (D. Mont. 1992).
205. The service areas will be areas not involving social and political policy decisions, i.e., areas that do not involve the provision of public goods. Private firms are more efficient providers of private goods. See RICHARD A. MUSGRAVE & PEGGY B. MUSGRAVE, PUBLIC FINANCE IN THEORY AND PRACTICE ch. 4 (5th ed. 1989).