Abstract
The Federal Tort Claims Act (FTCA) broadly waives the federal government’s sovereign immunity, but the discretionary function exception (DFE) preserves immunity for acts grounded in judgment or choice. A doctrinal tension arises from the Supreme Court’s instruction in Berkovitz v. United States that the DFE does not apply when a directive “specifically prescribes a course of action.” In highstakes contexts such as wildfire suppression, government actors sometimes deviate from such mandatory directives to make split-second, policy-driven decisions. Yet, in most cases, courts still treat these violations as discretionary acts protected by the DFE, often without explaining how this outcome comports with the Supreme Court’s clear instruction in Berkovitz.
This Comment argues for a new interpretation of Berkovitz’s first prong: a directive should eliminate discretion only when it specifies concrete actions that advance the overarching policy objectives of the government operation. Thus, when compliance with a directive would fail to change the manner of operational execution or would frustrate policy objectives, even a mandatory directive should not eliminate discretion. This framework reconciles the varied approaches in case law, aligns with Supreme Court precedent, and reflects the realities of emergency response. It also promotes judicial economy by filtering out tort claims that would otherwise fail on causation or negligence grounds.
Start Page
675
Recommended Citation
Li, Nathan
(2026)
"When the Rules Burn: A New Approach to Governmental Discretion in Firefighting Operations,"
University of Chicago Legal Forum: Vol. 2025, Article 20.
Available at:
https://chicagounbound.uchicago.edu/uclf/vol2025/iss1/20