| This dissertation examines the Discretionary Function Exception (DFE) to the Federal Tort Claims Act (FTCA). Enacted by Congress in 1946, the FTCA is a partial waiver of sovereign immunity, or the common law tradition that "the King can do no wrong," and establishes that the United States government can be held liable for its torts to the same extent as private individuals are liable under similar circumstances. The DFE is a controversial, and not well-understood, limitation to the government's waiver of sovereign immunity.;Despite their 60-year existence, the public administration community knows surprisingly little about how the FTCA and DFE operate in federal courts, and the United States Supreme Court has only addressed the DFE on four occasions, creating a confusing test or set of standards to be applied by federal district courts, the judicial institution that hears the vast majority of DFE-related litigation. This dissertation, which focuses on a common aspect of DFE litigation, government's pretrial motions to dismiss a private litigant's DFE case, presents descriptive, quantitative data collected from DFE cases decided in federal district courts and reported to LexisNexis, an Internet legal search engine. These data provide both pragmatic and theoretical insight about the historical development of the DFE in the federal district courts.;From these data, it is clear the FTCA and DFE are significantly more complex and theoretically nuanced than previously discovered. First, although the FTCA "judicialized" public administration, and while FTCA litigation in the federal district courts has not led to increased accountability and transparency for agencies, the FTCA remains a "legislative-centered" statute because it is only a partial waiver of sovereign immunity and leaves to Congress the ultimate authority to compensate victims of government's torts. Second, DFE jurisprudence reveals a preference at both the United States Supreme Court and federal district courts for "traditionalist" public administration values, something which previously had only been observed at the Supreme Court level. And, third, the DFE's history in the federal district courts reveals a previously unidentified partnership between the public administration and the judiciary: the federal district courts as agencies' risk managers. |
