Discretionary Function Exemption Returns Sovereign Immunity to the Throne of Douglas County - Once Again, the King Can Do No Wrong: Jasa v. Douglas County, The
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Martin, Angela L.
INTRODUCTION|Prior to 1946, an individual could not bring a tort action against the United States. However, in 1946, Congress enacted the Federal Tort Claims Act ("F.T.C.A.") in response to the growing influx of private tort claims which citizens were bringing against the government. The F.T.C.A. waives sovereign immunity and permits an individual to sue the government in Contract and Tort. Although the waiver of immunity as set out in section 2674 of Title 28 of the United States Code appears broad, Congress severely restricted its applicability in another section of the F.T.C.A. by exempting thirteen different classes of tort claims from liability. Among these restrictions is the discretionary function exemption ("exemption").|The exemption insulates a government employee from liability if the employee is performing a "discretionary function." Congress adopted the exemption out of its fear that the F.T.C.A. and its waiver of sovereign immunity would interfere with governmental functions and decision-making. Congress was also concerned that the F.T.C.A. exceeded the bounds of the separation of powers doctrine...
28 Creighton L. Rev. 247 (1994-1995)
Creighton University School of Law