Discretionary Function Exception to the Federal Tort Claims Act

If the United States Government is responsible for an accident, it can be sued just like any other wrongdoer under the Federal Tort Claims Act.  But there's an important exception -- the federal government cannot be sued for bad decisions that the government left to the federal employee's best judgment.  The "Discretionary Function Exception" is perhaps the most important limitation on a victim's right to sue the government when it causes injury or death.  And the exception is complicated. Claire Choo helps unravel it.

 

Tort Claims Act  

Andreini Family Speaks Out

The Andreini family gave their first interview since Eddie's death to KTVU's John Sasaki.  John asks us about the lawsuit we filed today against the United States Air Force. 

 

Suing the United States Government for an Air Traffic Controller's Negligence

Air traffic controllers work within the guidelines set forth in the Controller's Handbook (pdf), which they often call "the Bible."  The Handbook is hundreds of pages long, and controllers must follow it to the letter.  If they deviate and an accident results, the Federal Tort Claims Act permits the victim to sue the FAA for negligence. 

Sometimes, the Handbook doesn't cover a particular air traffic situation. In those cases, the controller is supposed to simply use his best judgment.  But this would seem to present a problem for the victim of the controller's error.  That's because one of the Federal Tort Claims Act's most important limitations is the "Discretionary Function Exception."FAA Control Tower The Discretionary Function Exception states that a victim can’t sue the federal government for bad decisions that the government left to the federal employee's best judgment.  Regardless of how careless the employee was, the government is immune from suit. 

Does that mean that, if a controller makes an error in a situation not covered by the Controller's Handbook, the victim can't sue?  

No.  Courts have ruled that an air traffic control error never falls within the Discretionary Function Exception. It doesn't matter whether the air traffic situation was covered in the Handbook, or was one left to the controller's judgment.  If a controller's error caused the accident, the victim can sue the FAA for negligence, just as though the FAA were a private party.

However, certain other rules will apply to the victim's lawsuit: 

  • Before starting the suit, the victim must file a claim against the government on a Form 95: 
  • The lawsuit must be filed in Federal Court, not State Court;
  • The judge -- not a jury -- decides the case;
  • No punitive damages can be awarded; 
  • The victim's attorney can charge a contingency fee of no more than 25% of any judgment that the court renders; 
  • If the FAA settles out of court,  the attorney can charge a contingency fee of no more than 20%.