Sixth Circuit Severely Limits FTCA Claims With Broad Interpretation of Discretionary Function Exception

I am one of the those personal injury lawyers who doesn’t win every case.  The  loss in Kohl v. United States of America is particularly difficult.  First, we have a wonderful client who I truly believe has a valid claim.  Second, the opinion in this case makes it very difficult for anyone to establish subject matter jurisdiction in any type of Federal Tort Claims Act (FTCA) case other than those arising from classic motor vehicle crashes.

Debbie Kohl, a member of the Nashville Bomb Squad, received a serious brain injury during a training exercise.  While Debbie was partially inside a van looking for explosives, an ATF agent tried to wench open a door on the van, causing the van to shift and hit Debbie on the head.

We brought an FTCA claim on Debbie’s behalf, alleging that the ATF agent was negligent in his operation of the wench and in failing to warn her that he was going to use it.  The Federal Government denied liability, and argued that the court did not have subject matter jurisdiction in the case because the ATF agent was engaging in a discretionary function.

The federal court in Nashville dismissed our case, and we appealed to the Sixth Circuit.  Arguments were in early September; Brandon Bass in our office argued that case and did an excellent job before a court that was very well-prepared.

The Sixth Circuit affirmed the dismissal of the case in a 2-1 decision.  The majority concluded as follows:

The key question in this appeal is whether the conduct at issue here was sufficiently based on the purposes that the regulatory regime—here the research
experiment—sought to accomplish.  … Although this is a close case, we conclude that the answer to this question is yes. The decision to use a winch was part of the decision-making involved in deciding how best to conduct the post-blast investigation.

The[] cases make clear that the discretionary-function exception protects decisions at the operational level, including choices like the one [the] ATF employee [ ] made in this case about when to use a winch. Because ATF employees had discretion to decide how best to conduct the field test, including which equipment to use, the decision to use a specific piece of equipment in this particular situation, i.e., to use a winch to open the door of the minivan, also falls within the government’s discretionary decisions. This is so even if [the ATF agent] was negligent in using the equipment—the discretionary-function exception protects even abuses of discretion.

Those of us who handle these cases can see that under the test applied by the Sixth Circuit the discretionary function exception will now almost eviscerate liability under the FTCA.  The Government will almost always try to reach upstream and try to shield every negligent act by a government agent as part of the regulatory scheme that the Government was attempting to accomplish.  

I mean, if the simple act of using a wench falls within the discretionary function exception, what doesn’t?

Judge Merritt agrees.  After explaining that there would be liability under the facts if they had arose in the private sector, Judge Merritt said that 

my colleagues simply say there can be no such liability, despite the statutory
language, if the conduct “involves choice or judgment” because — for some unstated reason — liability for such a choice “amount[s] to a challenge as to the overall execution of the research project.” (Opn., p. 11.) Why? The problem with formulating a standard or principle this way is that almost every act by government or private agent in the scope of employment would “challenge a policy” if it is for the purpose of carrying out some government or private interest, policy or plan. [Footnote omitted.]

Judge Merritt explained that 

no complex balancing was required in this case. The challenge facing the agent was how to get the door off the van to recover evidence. The Government points to no statute, regulation, or agency guidance granting the agent discretion to choose among a number of methods to achieve this task. Assuming that the agent had authority to remove the door, the ultimate decision to use the winch required no calculus as to the best use of government resources or the cost of proceeding
otherwise. Indeed, there is no evidence that the agent had any tool but the winch
available, or that he did anything other than grab the instrument nearest at hand. The
decisional process the agent employed is not the sort of judgment characteristic of social, economic, or political policy.

He concluded his dissent with the following words:

We now seem inclined to redistribute the costs of accidents created by government to private individuals who are much less capable of shouldering the burden. Because the agent’s decision to use a winch required no policy judgment, and because the plaintiff’s suit would in no way interfere with government operations, I respectfully dissent.

So, we are weighing our options.  Do we attempt en banc review?  Or do we bypass that route and ask the United States Supreme Court to hear the case?  SCOTUS has not heard a discretionary function case in 20 years, and the law is this area is a mess.  We would welcome any input on this subject from other FTCA lawyers around the country.   Likewise, if anyone knows of a group that would care to subject an amicus brief on this subject please send me an email at or use our Contact form.

The notion that the Government can kill or main a citizen and escape responsibility for it is something that I will never understand.  Congress created the discretionary function exception to tort liability but, in my opinion, the federal courts have construed the language in an expansive way that is a disservice to our citizens and promotes no valid federal interest.



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