Chadd Ex Rel. Estate of Boardman v. United States

I respectfully dissent.

A Supreme Court concurrence commented that the courts have had “difficulty in applying” the rule for deciding which *1115government actions fall within the discretionary function exception.1 Indeed. In this case, we have allowed the discretionary function exception to swallow the statutory rule that the federal government waives its sovereign immunity for torts for which an ordinary person would be liable. Under the Court’s opinions in United States v. Gaubert2 and Berkovitz v. United States,3 the negligence in this case falls outside the discretionary function exception.…