Alaska Enviro Suit Shows Gov't Is A Tough Tort Defendant

November 5, 2020
Brandon Matsnev

On Sept. 4, the U.S. Court of Appeals for the Ninth Circuit decided Nanouk v. U.S., which features a helpful statutory analysis for environmental lawyers. Also, its basic facts might turn the heads of excitable sci-fi readers:  A Cold War-era U.S. military installation allegedly leaked mysterious chemicals onto the lands of unsuspecting citizens.

The Federal Tort Claims Act permits claims for monetary damages against the U.S. for injury or loss of property caused by the wrongful acts of federal employees. [1] This waiver of sovereign immunity, however, is limited by the discretionary function exception, which preserves immunity for claims "based upon the exercise or performance or the failure to exercise or perform discretionary function or duty on the part of the federal agency or an employee of the Government."[2]

In other words, one can sue the federal government in tort when a federal employee is legally required to take a certain nondiscretionary action that results in damage.  Where an action involves an element of judgment or choice, though, it cannot be the basis of a lawsuit.  The rationale for this exception is that it would be inappropriate for courts to second guess discretionary judgements based on social, economic or political policy.

But what is the result where the government might have just messed up? Can it rely on this exception to dismiss a lawsuit based on a mistake, where the mistake was in some sense discretionary?

MGKF's Brandon Matsnev answers these questions and takes a closer look at the case for Law360

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