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The FTCA does not waive sovereign immunity for any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C.S. § 2680(a).
Lora Loge contracted paralytic polio after her infant son was inoculated with a trivalent, live, oral poliovirus vaccine trade named Orimune. She and her husband sued the United States and unknown employees of the Department of Health, Education, and Welfare (HEW) under the Federal Tort Claims Act (FTCA) and the Constitution alleging liability based on negligent and willful acts and omissions committed in the regulating, testing, and licensing of Orimune. The government moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. F.R.Civ.P. 12(b)(1) and (6). The district court, 494 F. Supp. 883, dismissed the complaint "for failure to state a cause of action" (R. 83), and the Loges appeaedl.
Did FTCA waive sovereign immunity from claims based upon an agency's failure to perform a discretionary function?
The court affirmed the dismissal of all but two of the claims, holding that the FTCA did not waive sovereign immunity from claims based upon an agency's failure to perform a discretionary function, and the alleged failure to require testing of the shed virus involved the nonperformance of such a function. The court reversed as to two claims that HEW negligently failed to enforce existing regulations because the alleged failure to enforce was not a discretionary function, but was a failure for which HEW could be liable under Arkansas law.