Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
United States. The Court ruled that the foreign country exception barred the claim. In Smith v.
United States, 507 U.S. 197 (1993), the Court ruled that the exception applies to Antarctica.
4. A panoply of exceptions. The FTCA waives sovereign immunity where “a private person,
would be liable to the claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346 b(1). In United States v. Olson, 546 U.S. 43 (2005), the Supreme
Court unanimously reversed the Ninth Circuit’s ruling that the FTCA waives sovereign immunity
where a state or municipal entity would be liable.
The FTCA provides that “[t]he United States . . . shall not be liable for interest prior to
judgment or for punitive damages.” 28 U.S.C. § 2674. In FAA v. Cooper, 132 S. Ct. 1441
(2012), the Supreme Court denied punitive damages to a pilot who sued the FAA, DOT, and SSA
for disclosing his HIV positive status in violation of the Privacy Act of 1974. However, in Molzof
v. United States, 502 U.S. 301 (1992), the Court ruled that the exception does not bar damages for
loss of enjoyment of life and future medical expenses when their recovery does not depend on any
proof that the defendant engaged in intentional or egregious misconduct and their purpose is not
to punish.
5. Katrina canal breaches litigation. In the aftermath of Hurricane Katrina, Louisiana
residents brought a lawsuit against the Army Corp of Engineers (“Corps”), seeking compensation
for flooding damages.
The government’s defense rested in part on the discretionary-function exception (“DFE”)
to the Federal Tort Claims Act (“FTCA”), alleging that the Corps’s conduct in question
constituted a discretionary function of a federal agency. Plaintiffs disputed the application of
DFE based on three grounds, which the Fifth Circuit Court of Appeals described as follows:
First, they claim that the impact-review requirement of the National Environmental
Policy Act (“NEPA”) constituted a legal mandate that overrides the Corps’s
discretion. Next, they maintain that one or more project authorizations created a
non-discretionary duty to armor the banks of MRGO. Finally, they argue that the
critical calculation made by the Corps in waiting to armor MRGO was an erroneous
scientific judgment, not a decision susceptible to public-policy considerations.
696 F.3d 436, 449 (5th Cir. 2012).
A panel of the Fifth Circuit initially held that the DFE defense did not immunize the
government against damages caused by Katrina’s effects on MRGO. Id. at 391. Reasoning that
the immunity defense under the DFE required that the conduct in question involve “an element of
judgment or choice” and constitute “governmental actions and decisions based on considerations
of public policy,” the panel rejected the discretionary function defense. Id. at 392 (quoting
Freeman v. United States, 556 F.3d 326, 337 (5th Cir. 2009)). In particular, the court found that
the Corps’s delay in armoring the banks failed to satisfy the second prong of the requirement, as
the delay did not involve “a decision rooted in public-policy considerations” but “an erroneous
scientific judgment.” Id. at 394.
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