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DISCRETIONARY FUNCTION EXCEPTION

The Federal Torts Claims Act is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a 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.' 28 U.S.C. Sec. 2680(a).

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 (1988). See Kennewick Irrigation District v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 (1991) (quotation omitted). '[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.' Berkovitz, at 535. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, at 322-23. Thus, the discretionary function exception protects only broad policy-based actions or decisions by government employees.

A 'decision not to warn of a specific, known hazard for which the acting agency is responsible is not the kind of broader social, economic or political policy decision that the discretionary function exception is intended to protect.' Sutton, 26 F.3d at 910

The discretionary function exception restores the government's immunity in situations where its employees are carrying out governmental or 'regulatory' duties. See 138 Cong. Rec. S13982-01, *S14010 (daily ed. Sept. 18, 1992). Accordingly, if the government can prove that the actions taken by its employees consisted of the unique functions and responsibilities of the government, then the government cannot be held liable under the FTCA even if a private individual would be held liable. See H.R. Rep. No. 1015, 101st Cong. 2nd Sess. 134 (1991)('The purpose of the discretionary function exception is to protect the ability of the government to proceed with decisionmaking in carrying out its unique and vital functions without `second-guessing' by the courts as to the appropriateness of its policy choices'); U.S. v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). However, in cases where the government is alleged to have committed negligence in the performance of a function such as that performed by a private citizen, rather than in the fulfillment of a broad policy-making duty, the government is subject to suit.

This same exception can also apply to various other federal and state causes of action such as civil rights and discrimination claims. However, it may not be a clear factual situation and is often the subject of intensive litigation and motion practice.

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