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Seminar 9

Seminar 9. Discretionary Function Doctrine. Seminar’s Topic. This week's Seminar will cover the discretionary function doctrine, discussed beginning on page 302 of Administrative Law .   . Review. Can you sue the government? http://www.youtube.com/watch?v=Y9GrmWCwyjw

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Seminar 9

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  1. Seminar 9 Discretionary Function Doctrine

  2. Seminar’s Topic • This week's Seminar will cover the discretionary function doctrine, discussed beginning on page 302 of Administrative Law.   

  3. Review • Can you sue the government? • http://www.youtube.com/watch?v=Y9GrmWCwyjw • Federal Tort Claims Act-- The FTCA permits private parties to sue the United States or employees in a federal court for torts committed by employee. This is limited waiver of sovereign immunity. • Exceptions when the government can not be sued: 1) Executive functions; 2) Intentional Torts; 3) Discretionary Function

  4. What is the discretionary function doctrine? • It excludes any claim arising out of the performance or nonperformance of a discretionary function or duty. Discretionary functions refer to the policy and planning functions of each Federal agency.

  5. What does the discretionary function doctrine hold? • In United States v. Gaubert, the Supreme Court set out a two-part test to determine when the discretionary function doctrine can be applied: • First, the court must examine whether the challenged conduct is “discretionary in nature” or whether the conduct “involve[s] an element of judgment or choice.” Id. (quoting Berkovitz et al. v. United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 1958 (1988)) (internal quotation marks omitted). • Second, the court must decide “whether that judgment is of the kind that the discretionary function exception was designed to shield,” i.e., whether it is “susceptible to policy analysis.” Id. at 322, 325, 111 S. Ct. at 1273, 1275.

  6. When is function non-discretionary? • A function is non-discretionary “if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow” where “the employee has no rightful option but to adhere to the directive.” Id. at 322, 111 S. Ct. at 1273 (internal quotation marks omitted).

  7. What is the difference between a discretionary function and a ministerial function? • Discuss ministerial function. • An act performed according to legal rules, established procedures or instructions from a superior, without exercising any individual judgment. (Opposite of discretionary function) • Example of each kind of function.

  8. A thought & question • We have learned that the exemption from liability for discretionary acts of government employees even applies if the act involves an abuse of discretion. Do you believe this is appropriate? Why or why not?

  9. Final Examination Tidbit • The Final Exam will consist of 35 true/false and multiple-choice questions and two short essay questions. The essay questions should be answered in one or two paragraphs. Your Final Exam and Final Exam Essays must be completed and submitted by the end of Unit 9.

  10. Last moments…

  11. Words of Wisdom • The reason most people never reach their goals is that they don't define them, or ever seriously consider them as believable or achievable. Winners can tell you where they are going, what they plan to do along the way, and who will be sharing the adventure with them.Denis Watley

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