Does the Two-Prong Test for Determining Applicability of the Discretionary Function Exception Provide Guidance to Lower Courts Sufficient to Avoid Judicial Partisanship?

University of St. Thomas Law Journal Volume 8 Issue 3 Spring 2011 Article 6 2011 Does the Two-Prong Test for Determining Applicability of the Discretionary Function Exception Provide Guidance to Lower Courts Sufficient to Avoid Judicial Partisanship? Robert C. Longstreth Bluebook Citation Robert C. Longstreth, Does the Two-Prong Test for Determining Applicability of the Discretionary Function Exception Provide Guidance to Lower Courts Sufficient to Avoid Judicial Partisanship?, 8 U. St. Thomas L.J. 398 (2011). This Article is brought to you for free and open access by UST Research Online and the University of St. Thomas Law Journal. For more information, please contact . 31446-ust_8-3 Sheet No. 55 Side B 05/11/2012 16:54:17 \\jciprod01\productn\U\UST\8-3\UST306.txt unknown Seq: 1 11-MAY-12 12:02 ARTICLE DOES THE TWO-PRONG TEST FOR DETERMINING APPLICABILITY OF THE DISCRETIONARY FUNCTION EXCEPTION PROVIDE GUIDANCE TO LOWER COURTS SUFFICIENT TO AVOID JUDICIAL PARTISANSHIP? HON. ROBERT C. LONGSTRETH* 398 C M Y K 05/11/2012 16:54:17 * Judge of the Superior Court, State of California, San Diego County. Formerly Trial Attorney, Torts Branch, United States Department of Justice. 1. See, e.g., Robert Houghwout Jackson, University Convocation, 6 SYRACUSE L. REV. 219, 224–25 (1955) (trusting that law students “will learn that ‘a Government of laws and not of men’ may be an ideal, capable of only imperfect attainment, but that it is not a shallow clich[é]. They will believe in law, in its administration by men as detached, impersonal and dispassionate as humanly possible.”). 2. Miles v. Ill. Central R.R. Co., 315 U.S. 698, 706 (1942) (Jackson, J., concurring). 3. United States v. Haldeman, 559 F.2d 31, 132 n.297 (D.C. Cir. 1976). 4. The exception is set forth at 28 U.S.C. § 2680(a) (2006). Subject to the discretionary function exception and many other exceptions, the Federal Tort Claims Act, enacted in 1946, affords the federal district courts exclusive jurisdiction of civil actions for money damages against the United States arising out of the negligent or wrongful acts or omissions of federal employees 31446-ust_8-3 Sheet No. 55 Side B Achieving consistency in decisions across judicial officers is an important objective.1 Since litigants and the public at large are unlikely to follow court orders that are widely considered illegitimate, the effectiveness of the judiciary is significantly weakened if decisions are perceived to rest largely on the political or policy preferences of judges instead of objective principles such as reliance on precedent, disciplined legal reasoning, or persuasive statutory construction. Moreover, if litigants believe that judicial outcomes rest on the identity of the decision maker, they are more likely to engage in both forum shopping, which the judiciary has often disfavored as unprincipled and inefficient,2 and judge shopping, “a practice which has been for the most part universally condemned.”3 This article assesses the extent to which the political or policy preferences of federal judges determine how they apply the discretionary function exception to the Federal Tort Claims Act (FTCA).4 The article uses the 31446-ust_8-3 Sheet No. 56 Side A 05/11/2012 16:54:17 \\jciprod01\productn\U\UST\8-3\UST306.txt 2011] unknown Seq: 2 11-MAY-12 THE TWO-PRONG TEST AND JUDICIAL PARTISANSHIP 12:02 399 political party of the appointing President as a proxy for these preferences, assuming that federal judges confirmed after nomination by a Democratic president (“Democratic-nominated judges”) are more likely than federal judges confirmed after nomination by a Republican president (“Republicannominated judges”) to favor allowing tort suits against the government and therefore less likely to apply the discretionary function exception to bar such suits. If existing precedent and norms adequately constrain the expression of judicial policy preferences, this analysis should show little difference between Democratic-nominated judges and Republican-nominated judges in the application of the discretionary function exception. If, however, existing precedent and norms allow these preferences to control the holdings in FTCA actions, there should be a significant variance between Democratic-nominated judges and Republican-nominated judges in how often they hold that the discretionary function exception bars suit.5 The article concludes that federal Republican-nominated judges are more likely than Democratic-nominated judges to find that the discretionary function exception bars tort actions against the federal government. Almost all of the variance is explained by the different rates at which Republicannominated judges and Democratic-nominated judges find satisfied the second prong of the discretionary function test, which assesses whether the tort action challenges governmental decision making that is susceptible to policy analysis. The party of the appointing president does not greatly influence the rate at which judges find the first prong of the discretionary function test satisfied, which addresses whether particular conduct is mandated by statute, law, or policy rather than being discretionary. Deciding whether to hold the government liable in tort often carries a significant emotional and political charge. Many FTCA suits arise from incidents causing substantial loss of life, as well as widespread injury and property damage, generating sympathetic claims for compensation asserted against one of the few entities able to provide it fully.6 Particularly acute are C M Y K 05/11/2012 16:54:17 in situations where private persons would be liable to the claimant under applicable state law. 28 U.S.C. §§ 1346(b), 2671–80 (2006). 5. The analysis is based on a review of all FTCA cases addressing the discretionary function exception decided in a recent two-year period and available on the WestlawNext database. 6. See, e.g., Dalehite v. United States, 346 U.S. 15, 17 (1953) (describing that following a disaster that killed nearly 600 people and caused thousands of injuries, over 300 suits were brought seeking $200 million in damages, and recovery was denied); Davis v. United States, 597 F.3d 646 (5th Cir. 2009), cert. denied, 130 S.Ct. 1906 (2010) (barring suit challenging a government rescue effort following Hurricane Katrina, which killed nearly 2000 people and caused an estimated $81 billion in property damage); In re Katrina Canal Breaches Litig., 351 F. App’x 938 (5th Cir. 2009) (barring suit challenging the government’s response to Hurricane Katrina); Freeman v. United States, 556 F.3d 326 (5th Cir. 2009), cert. denied, 130 S.Ct. 154 (2009) (same); St. Tammany Parish v. FEMA, 556 F.3d 307 (5th Cir. 2009) (same); In re FEMA Trailer Formalde- 31446-ust_8-3 Sheet No. 56 Side A CONSIDERATIONS IN APPLYING THE FTCA’S DISCRETIONARY FUNCTION EXCEPTION 31446-ust_8-3 Sheet No. 56 Side B 05/11/2012 16:54:17 \\jciprod01\productn\U\UST\8-3\UST30 (...truncated)