Circuit Split as to Whether Government or Plaintiff Bears Burden of Proving Applicability/Inapplicability of Discretionary Function Exception in Federal Tort Claims Act Case

Timmerman v. United States, 2012 U.S. Dist. LEXIS 78651 (D. P.R. June 5, 2012):

The FTCA provides a "carefully limited waiver" of the federal government's sovereign immunity for certain claims alleging harm caused by United States employees or agents. Carroll v. U.S., 661 F.3d 87, 93 (1st Cir. 2011)(citing Bolduc v. United States, 402 F.3d 50, 62 (1st Cir. 2005)). Said waiver allows civil actions against the government "for injury or loss of property ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). The waiver also has exceptions and, where they apply, "the federal courts lack subject matter jurisdiction over torts against the United States." Wood v. United States, 290 F.3d 29, 36 n. 4 (1st Cir. 2002); [*5] Montijo-Reyes v. United States, 436 F.3d 19, 24 (1st Cir. 2006).

One of these exceptions is the discretionary function exception. The discretionary function exception bars:

Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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. § 2680(a).***

Said exception applies if the conduct underlying the FTCA claim (1) "involves an element of judgment or choice, and (2) was susceptible to policy-related analysis." Sanchez ex rel. D.R.-S. v. U.S.,671 F.3d 86, 93 (1st Cir. 2012)(citing Limone v. United States, 579 F.3d 79, 101 (1st Cir.2009)(quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 100 L. Ed. 2d 531, (1988))(internal citations and quotation marks omitted). "Conduct does not involve an element of judgment or choice if a "'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' because 'the employee has no rightful option but to adhere to the directive.'" Sanchez ex rel. D.R.-S., 671 F.3d at 93 (citing United States v. Gaubert, 499 U.S. 315, 322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991)). Furthermore, conduct is susceptible to policy analysis if some plausible policy justification could have undergirded the challenged conduct; it is not relevant whether the conduct was the end product of a policy-driven analysis. Sanchez ex rel. D.R.-S., 671 F.3d at 93 (citing Shansky v. United States, 164 F.3d 688, 692 (1st Cir. 1999)). Thus, a court must first identify the conduct alleged to have caused the harm and then determine whether the conduct can be fairly described as discretionary, and if so, decide whether the exercise or non-exercise of the granted discretion is actually or potentially influenced by policy considerations. Carroll, 661 F.3d at 100 (citing Fothergill v. United States, 566 F.3d 248, 252 (1st Cir. 2009)).

If the challenged conduct is both discretionary and policy-based, there is no subject-matter jurisdiction for the claim. Carroll, 661 F.3d at 100 (citing Montijo-Reyes, 436 F.3d at 24). First Circuit precedent places the burden on the plaintiff to show that discretionary conduct was not policy-driven and, thus falls outside the exception. Carroll, 661 F.3d at 100 n. 15 (citing Bolduc, 402 F.3d at 60, 62). However, the First Circuit has noted that there exists a circuit split as to whether the plaintiff or the government bears the burden of proof regarding the discretionary function exception. Carroll, 661 F.3d at 100 (citing Hart v. United States, 630 F.3d 1085, 1089 n. 3 (8th Cir. 2011)).

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