This post concludes my two-part preview of Thacker v. Tennessee Valley Authority, Dkt. 17-1201 (U.S. Sup. Ct.). The first post argued that the Federal Tort Claims Act (“FTCA”) and the Administrative Procedure Act (“APA”) should be interpreted in a complementary manner.  It explained the discretionary function exception’s vital role in allocating controversies arising from government activities between ex ante APA procedures and ex post tort litigation.  That post is accessible here.

The APA’s Limitations

In my first post I explored the APA’s capacious realm.  But the APA and similar statutes providing for participation and judicial review have limitations, making some wrongs more appropriate for vindication by common law tort suits.  The APA applies only to certain “discrete” “agency action,” namely “agency rule[s], order[s], license[s], sanction[s], [or other] relief,” 5 U.S.C. §551(13), which result from rulemaking, adjudication, or licensing processes.  See, Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 62-63 (2004).  But some tortious wrongs are not amenable to or appropriate matters for such processes.

It may be that such wrongs take place before they can be subject to any administrative processes.  Procedural due process law provides an analogy.  The Supreme Court has held that unauthorized deprivation of property by individual prison guards does not constitute a deprivation of due process because such deprivations do not occur as a result of some established state procedure.  Hudson v. Palmer, 468 U.S. 517, 533-34 (1984); Parratt v. Taylor, 451 U.S. 527, 540-41, 543 (1981).  In such cases post-deprivation tort liability can satisfy procedural due process requirements.  Id. at 537.  Employee negligence in driving or operating machinery, the archetypal category of FTCA claims, provide an example of such decisions.  See, Dolan v. USPS, 546 U.S. 481, 487-88 (2006); Kosak v. United States, 465 U.S. 848, 855 (1984); TORT CLAIMS: HEARINGS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY, 79TH CONG., 2D SESS. 29-30 (January 29, 1942) (statement of Assistant Attorney General Francis M. Shea)(given the “considerable use of automobiles and other mechanical equipment capable of causing damage to persons and property [by the federal government], the absence of a satisfactory procedure for redressing wrongs is a grave defect in our social policy.”)(accessible to subscribers at Hein-on-Line, in 2 LEGISLATIVE HISTORY OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, Doc. 23).

Or an injury-producing event may flow from a managerial decision that is not particularly appropriate for APA-type administrative processes and judicial review.  The Supreme Court’s concern in SUWA regarding general programmatic challenges to an agency’s administration of a program, id. at 64, may provide some insight into this second category of decisions.  The Court asserted that litigants “cannot seek wholesale improvement of [a] program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made,” id. (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990)).  In such circumstances, where an agency or federal instrumentality physically injures a person, ex post monetary damages are appropriate.  Awarding damages is preferable to attempting safeguard members of the public from physical injury by overseeing agency official’s supervision and control over the agency’s employees and day-to-day operations.  Issuing injunctions, based on a Learned Hand calculus of risk, see, U.S. v. Carroll Towing, 159 F.2d 169, 173 (1947)(B<PxL), regarding the manner in which power lines are maintained or the manner in which the public should be warned of temporary hazards seems unduly intrusive and inappropriate.

Indeed application of public participation requirements and judicial review to managerial decisions of an entity that has been launched into the commercial world and given corporate form, precisely because of the flexibility such a non-conventional form of organization provides, seems particularly inappropriate.  See United States Government Accounting Office, Government Corporations: Profiles of Existing Government Corporations 8 (December 1995) (“Congress established [government corporations] to carry out business-type programs that need more autonomy and flexibility than that provided by a conventional government agency structure,” and thus exempts them from certain statutory constraints on management so as to allow them “to respond more quickly to changes in the marketplace and, in some cases, to take advantage of cost-saving opportunities.”); see generally, AG Manual, supra, at 27 (explaining that the exemption of rules relating to public property from notice and comment requirements “extends . . . to rules issued by the Tennessee Valley Authority in relation to the management of its property”).

The discretionary function exception, generally, should be interpreted in light of the practicality and appropriateness of the imposition of APA-like processes and judicial review upon the decision or action in question.  Accord, Harold J. Krent, Preserving Discretion Without Sacrificing Deterrence: Federal Governmental Liability In Tort, 38 UCLA L. REV. 871, 873-74 (1991).  The more amenable and appropriate APA-type procedures and judicial review, the more appropriated a finding that the discretionary function exception forecloses tort liability for such a decisions.  And, under the APA, an agency may be accountable for some of its actions only through the political process, see 5 U.S.C. §701(a), a finding that should also preclude tort liability.  Accord, Krent, supra, at 874.

The Meaning of “Discretion”

Congress used the term “discretion” in the discretionary function exception, section 706 of the APA, and section 701 of the APA in different senses.  See Webster v. Doe, 486 U.S. 592, 609-10 (1988)(Scalia, J., dissenting)(noting the apparent conflict between sections 701 and 706); Krent, supra, at 903-904 (same).

As used in section 701, namely “committed to agency discretion by law,” “discretion” connotes matters considered entirely within the executive branch’s purview, and for which executive officials are accountable only in the political process.  Thus, when statutory constraints upon an agency are “drawn in such broad terms that in a given case there is no law to apply,” Citizens to Preserve Overton Park. v. Volpe, 401 U.S. 402, 410 (1971); Webster v. Doe, 486 U.S. at 599-600, a court is bereft of any meaningful standard by which to resolve a controversy.  Under Justice Scalia’s more expansive view of section 701(a)(2), the phrase “committed to agency discretion by law” incorporates common law doctrines that limit judicial incursion into the executive realm.  Webster v. Doe, 486 U.S. at 608-609 (Scalia, J., dissenting).  Both Justice Scalia, in Webster v. Doe, and the TVA, in its brief opposing the grant of certiorari in Thacker, trace such limitations to Marbury v. Madison, 5 U.S. 137 (1803).  Webster v. Doe, 486 U.S. at 608-609 (Scalia, J., dissenting); TVA Br. at 9 (“[t]he discretionary function exception is a crucial and longstanding form of immunity–recognized by this Court since at least Marbury v. Madison”).

Marbury v. Madison does indeed provide an early illustration of the constitutional nature of the distinction between politically examinable and judicially examinable acts.  As Chief Justice Marshal asserted, when an official carries out orders the President issues pursuant to the exercise of “certain important political powers, in the exercise of which [the President] is to use his own discretion, and is accountable only to his country in his political character,” such actions lie beyond the Judiciary’s purview.  But when a “specific duty” exists, and “individual rights depend upon the performance of that duty,” the executive official’s acts fall within the Judiciary’s purview.  Id. at 165-67.  Presumably not only statutory duties, explicitly referenced in Marbury, but also common-law tort duties of care vindicating individuals’ right to bodily integrity, are encompassed within the realm of legally enforceable rights.

But as used in 706, specifying that agency action may be overturned for an “abuse of discretion,” the term “discretion” connotes a legally-defined range of acceptable options among which an agency is largely free to choose.  But the legally-defined constraints upon the agency’s range of choices are judicially-enforceable; when agencies stray beyond those bounds courts can countermand their decisions.  In a sense the bounded discretion the agency enjoys is the realm of legitimate policy or factual disputes, where the agency has “discretion” to make its own policy judgments and draw its own factual inferences.

The use of the term “discretion” in the discretionary function exception is more akin to that in section 706.  It does not suggest that the matters encompassed by its terms are inherently solely with the executive purview or, thus, that no legal constraints on the exercise of that discretion exist.  Rather, it demarcates a sphere in which the legal constraints upon agency discretion are to be enforced pursuant to direct review of agency actions rather than by tort causes of action.  Thus decisions “grounded in social, economic, and political policy,” should be reviewed according to APA procedures.  But when those procedures are untenable or inappropriate, and when agency’s actions results in physical harm to an individual, the government’s actions lay outside the protection of the discretionary function doctrine, and can give rise to tort liability.

Enough Already: Can Thacker Sue or Not?

So what is the upshot of all this for Thacker.  First, to the extent there is a separation-of-powers-based “discretionary function” exception to sue-and-be-sued clauses waiver of sovereign immunity, its scope is much more limited than the discretionary function exception defined in section 2680.  The implied exception would encompass only those decision entirely within the purview of executive branch agencies, and for which executive branch officials are answerable only through the political process.

The manner in which a transmission cable is maintained hardly qualifies as a decision that should be beyond the purview of the court when an individual seeks judicial redress for personal injury.  The plan for warning boaters similarly hardly seems to qualify as a decision that must be assessed only in the political process.

Second, even if the discretionary function exception is fully incorporated into the TVA’s waiver of sovereign immunity, the challenged decisions do not merit protection under the doctrine.  Decisions regarding the manner of replacing accessories to a particular transmission cable are not amenable to judicial review, nor are they appropriate for APA-like agency process or judicial review.  This suggests that the appropriate means for vindicating a member of the public’s right to be free from negligently-inflicted personal injury is an ex post tort suit.  Similarly, the number of announcements to make and the number and patrol patterns of vessels deployed to warn boaters of a temporary hazard are not amendable to judicial review nor appropriate for APA-like processes or judicial review.

The FTCA was designed to waive sovereign immunity for the types of actions closely analogous to those that would subject private entities to tort liability.  28 U.S.C. 1346(b); Feres v. United States, 340 U.S. 135, 139–140 (1950); Cass, supra, at 1506, 1527.  The TVA actions that injured Thacker appear to result from the types of decisions closely analogous to those made by private non-governmental entities.  Surely industry-wide safety standards and best practices for performing maintenance work on transmission lines exist among public utilities (much like rules of the road exist for drivers and professional standards exist for medical personnel).  Indeed, were it not for the TVA’s independent litigating authority, the TVA would have had to seek, and may well not have received, authorization from the Department of Justice’s Torts Branch to raise a discretionary function defense.  U.S. Department of Justice, Justice Manual §4-5.220 (Assistant U.S. Attorney’s handling tort cases “must obtain approval from the appropriate FTCA Staff attorney prior to raising the ‘discretionary function exception’ defense in any case”)

In short, Thacker’s negligence claims appear to be ones that should not be barred by any form of discretionary function doctrine, either the one codified in 28 U.S.C. §2680 or some more limited, implicit one derived from separation of powers principles.