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Berkovitz v. United States

Supreme Court of United States
486 U.S. 531 (1988)
ELI5:

Rule of Law:

The discretionary function exception to the Federal Tort Claims Act (FTCA) does not shield the government from liability when a government employee violates a mandatory federal statute, regulation, or policy, as such conduct does not involve the element of judgment or choice that the exception is designed to protect.


Facts:

  • The Division of Biologic Standards (DBS), a federal agency, licensed Lederle Laboratories to produce an oral polio vaccine called Orimune.
  • Subsequently, the Bureau of Biologies of the Food and Drug Administration (FDA) approved the release of a specific lot of Orimune for public distribution.
  • On May 10, 1979, Kevan Berkovitz, a two-month-old infant, ingested a dose of Orimune from this specific lot.
  • Within one month, Berkovitz contracted a severe case of polio, which left him almost completely paralyzed and dependent on a respirator.
  • The Communicable Disease Center, a federal agency, officially determined that Berkovitz had contracted polio from the vaccine he ingested.

Procedural Posture:

  • Kevan Berkovitz and his parents sued the United States in a federal district court.
  • The Government filed a motion to dismiss for lack of subject-matter jurisdiction, arguing the claim was barred by the FTCA's discretionary function exception.
  • The District Court denied the Government's motion to dismiss.
  • The Government took an interlocutory appeal to the U.S. Court of Appeals for the Third Circuit (intermediate appellate court).
  • A divided panel of the Third Circuit reversed the District Court, holding that the suit was barred by the discretionary function exception.
  • The Supreme Court of the United States granted certiorari to resolve a circuit split.

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Issue:

Does the discretionary function exception of the Federal Tort Claims Act bar a tort suit against the United States based on a federal agency's alleged failure to follow specific, mandatory regulatory directives in licensing a polio vaccine and approving a specific lot for release to the public?


Opinions:

Majority - Justice Marshall

The discretionary function exception does not bar the suit. The exception protects only governmental actions and decisions based on considerations of public policy and does not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. The Court reasoned that the exception involves a two-part test: (1) whether the action is a matter of choice for the acting employee, and (2) if so, whether that judgment is the kind that the exception was designed to shield (i.e., based on public policy). In this case, the petitioners alleged that the DBS violated specific, mandatory regulations by licensing the vaccine without receiving required safety data and by approving a vaccine lot that did not comply with safety standards. Because these regulations prescribed a specific, non-discretionary course of action, an agency's failure to adhere to them is not protected by the discretionary function exception. Therefore, the suit cannot be dismissed at this stage, as the petitioners' allegations, if proven true, would describe conduct that falls outside the exception's protection.



Analysis:

This case significantly clarifies the scope of the discretionary function exception under the FTCA, establishing that it is not a blanket immunity for all regulatory activities. The Court's two-part test forces lower courts to analyze the specific nature of the challenged governmental conduct rather than the general status of the agency. By holding that violations of specific, mandatory directives are not discretionary, Berkovitz empowered citizens to hold federal agencies accountable for failing to follow their own rules. This decision narrowed the government's immunity and ensured that agencies cannot escape liability for negligence in the implementation of regulations that leave no room for policy judgment.

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