There is a well-established rule in American law that you cannot sue the government without its consent. This rule, known as sovereign immunity, imposes a high bar for anyone who wants to sue the government for the negligent acts of its employees. Basically, unless Congress adopts an express exemption to the sovereign immunity rule, the injured victim is out of luck.
Fortunately, Congress has adopted a fairly broad waiver of sovereign immunity for personal injury claims. The Federal Tort Claims Act (FTCA) allows individuals to sue the federal government for negligent acts, but there are multiple exceptions to this waiver. One of the most notable is the “discretionary-function” exception.
Under this exception, you cannot sue the federal government based on an employee’s “exercise or performance or the failure to exercise or perform a discretionary function.” In simpler terms, if the law gives a federal employee any amount of discretion on how to do their job, you cannot bring a claim under the FTCA based on how that discretion is used–even if the employee was negligent. However, if the employee failed to follow a specific federal law, regulation, or policy, then the FTCA’s waiver of sovereign immunity may still apply, as that does involve any discretionary function.
Foster Logging, Inc. v. United States
The U.S. 11th Circuit Court of Appeals recently examined the application of the discretionary function exception to a case involving property damaged by a “controlled burn” conducted by the military. In April 2017, officials at Fort Stewart near Hinesville conducted a controlled burn on base property. The plaintiff in this case was conducting logging operations nearby. According to the plaintiff’s lawsuit, Forest Branch officials failed to properly monitor the burn, which spread to the plaintiff’s property and severely damaged its equipment. As a result, the plaintiff’s insurance company was liable for about $250,000 in damages, with the plaintiff incurring an additional $125,000 in out-of-pocket expenses.
The plaintiff and its insurance company subsequently sued the U.S. government for negligence. The government argued the discretionary-function exception to the FTCA applied and barred the plaintiff’s claims. Both the district court and the majority of a three-judge panel of the 11th Circuit agreed with the government and dismissed the complaint outright.
Even assuming the Forest Branch’s actions in managing the controlled burn were negligent, the 11th Circuit said that “the steps and measures taken to safely execute a controlled burn  by its nature, involves an exercise of discretion and considerations of social, economic, political, and public policy.” This is precisely the sort of discretion Congress intended to shield from lawsuits, the appellate court concluded. Additionally, the majority said the plaintiff’s lawsuit failed to identify any specific policy or rule the Forest Branch violated in controlling the burn.
The dissenting judge, however, argued that the plaintiff should not have to identify such a policy in their initial complaint. At a minimum, the case should proceed to discovery. More to the point, “The majority’s assertion that all conduct relating to a prescribed burn is shielded by the discretionary function exception is wrong.” The dissent pointed to a “Prescribed Fire Plan” issued by the National Wildlife Coordinating Group, a federal agency, that strictly regulates the use of controlled burns and thus restricts the discretion of individual employees.