Federal Tort Claims Act – Discretionary Function Exception

The Federal Tort Claims Act (FTCA) bars claims that are based on the performance or failure to perform a discretionary function or duty of a federal agency or federal government employee, even if there is an abuse of discretion. According to this “discretionary function exception,” a personal injury action cannot be filed under the FTCA if the employee’s negligence arises from a discretionary function or the execution of a statute or regulation.

Generally, conduct falls within the discretionary function exception if:

(1) the conduct involves an element of judgment or choice (Conduct involves an element of judgment or choice if it is grounded in social, economic, and political policy; conduct is likely to involve an element of judgment or choice if the conduct is governed by an agency’s regulations.); and

(2) the conduct involves considerations of public policy.

Conduct such as planning, establishing policies, and allocating resources may fall within the discretionary function exception.