The "discretionary function or duty" that cannot form a basis for suit under the Federal Tort Claims Act, 28 U.S.C.S. §§ 1346, 2671-2678, 2680, includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of 28 U.S.C.S. § 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion.
Plaintiffs contended that the United States, without investigating the fertilizer's properties, permitted it to be shipped to a congested area without warning that it could explode under certain conditions. Plaintiffs brought a claim under the Federal Tort Claims Act, 28 U.S.C.S. §§ 1346, 2671-2678, 2680, seeking damages from defendant for the death of a decedent in explosions of fertilizer with an ammonium nitrate base. The district court rendered judgment for plaintiffs. The US Court of Appeals unanimously reversed. The Court granted certiorari and affirmed the appellate court's judgment.
Do the facts found by the District Court establish its jurisdiction over the United States under the Tort Claims Act?
The Court found that the Act's waiver of sovereign immunity did not apply, because the United States was engaged in a discretionary function in the initiation of programs and activities. The discretionary function also included determinations made by officials in establishing plans, specifications, or schedules of operations. That the cabinet-level decision to institute the fertilizer export program was a discretionary act was not seriously disputed. Nor did the Court think that there was any doubt that the need for further experimentation with the fertilizer was a matter to be determined by the discretion of those in charge of the production. The alleged negligence did not subject the United States to liability. The United States' decisions were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the fertilizer program. Finally, the Act did not extend to situations of absolute liability.