Also known as: discretionary functions · discretionary-function · discretionary function exception
Written by attorneys · grounded in primary & secondary sources — see below
A governmental act or omission that involves the exercise of judgment or policy choice rather than the performance of a ministerial duty. Such functions shield government actors from tort liability under the Federal Tort Claims Act even when discretion is abused. They also factor into determinations of absolute or qualified immunity for officials performing sensitive duties.
Deputy Director Harlan, detailed to the White House, received a presidential directive to block certain foreign-linked financial transfers. He coordinated with regulators to impose immediate account restrictions without hearings. Ridge Equity sued Harlan personally for due-process violations arising from the restrictions. The court assessed whether Harlan's actions qualified as discretionary functions tied to national security decision-making.
A. Ernest Fitzgerald testified before Congress about cost overruns on a military aircraft project. White House officials arranged for his dismissal from the Air Force. Fitzgerald sued the officials for retaliation. The court examined whether the officials' conduct involved discretionary functions warranting absolute immunity.
Select any source to read its text and confirm it supports the definition.
Federal marshals executed an arrest warrant at a private home and allowed a newspaper reporter to accompany them inside. The homeowner sued the marshals for violating Fourth Amendment rights during the search. The court considered whether the decision to permit media presence constituted a discretionary function protected by qualified immunity.
Federal agents entered an apartment without a warrant and conducted a search that allegedly violated the Fourth Amendment. The resident sued the agents for damages under an implied cause of action. The court evaluated whether the agents' investigative choices qualified as discretionary functions entitled to qualified immunity.
A government contractor manufactured a helicopter pursuant to detailed military specifications that included a particular escape system. After a crash, survivors sued the contractor for defective design. The court assessed whether the contractor's compliance with discretionary government specifications shielded it from liability.
U.S. officials arranged for the abduction of a Mexican national to face charges in the United States. The individual sued under the Alien Tort Statute for violations of international law. The court considered whether the officials' operational decisions involved discretionary functions that limited available remedies.
A discretionary function involves judgment or policy choice by a government employee or agency. A ministerial act follows a specific directive or rule with no room for choice. The distinction determines whether the Federal Tort Claims Act exception applies.
Yes. The Federal Tort Claims Act expressly states that the exception applies whether or not the discretion involved is abused. This prevents courts from second-guessing policy judgments regardless of outcome.
Presidential aides receive absolute immunity only when performing discretionary functions in sensitive areas of national concern closely tied to presidential decision-making. Otherwise they receive only qualified immunity that shields them unless they violate clearly established rights.
Private contractors may receive derivative immunity when they comply with reasonably precise government specifications that involve discretionary judgments. The protection applies when the government itself would be immune for the same discretionary choice.
…this policy distinction; in it Congress waived sovereign immunity for certain damages claims, but pointedly excepted any "discretionary function or duty . . . whether or not the discretion involved be abused." 28 U. S. C. § 2680(a). Under the Act, damage resulting from discretionary governmental action is not subject to…