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The discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment.
The child ingested a dose of an oral polio vaccine and contracted polio from the vaccine. Petitioners filed suit against the United States, alleging that the United States was liable for the child's injuries under 28 U.S.C.S. §§ 1346(b), 2674 of the FTCA because the Division of Biologic Standards (DBS) had acted wrongfully in licensing the manufacturer. Petitioners also alleged that the United States had acted wrongfully in approving the specific vaccine lot. The Federal Government moved to dismiss the suit for lack of subject-matter jurisdiction, on the ground that the predecessors' actions fell within the FTCA's exception to liability for the exercise of a "discretionary function or duty" (28 USCS 2680(a)), but the District Court denied the motion with respect to these allegations. After the District Court, pursuant to 28 USCS 1292(b), certified its decision for immediate appeal to the United States Court of Appeals for the Third Circuit, the Court of Appeals reversed, expressing the view that the discretionary function exception barred a suit based upon the licensing and lot-release allegations.
Did the discretionary function exception bar plaintiffs’ suit?
The Court reversed, holding that the court of appeals erred in holding that the discretionary function exception required the dismissal of petitioners' claims. The Court concluded that the exception posed no bar to the extent that petitioners' licensing claim was based on a decision of the DBS to issue a license without having received required test data because the DBS had no discretion to issue a license without the data. Similarly, the DBS had no discretion to issue a license without determining compliance with regulatory standards.