THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Federal Tort Claims Act. Volume 1 covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * Under the FTCA, Congress "waived the sovereign immunity of the United States for certain torts committed by federal employees." F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see 28 U.S.C. 1346(b). "[T]o be actionable under [the FTCA], a claim must allege, inter alia, that the United States 'would be liable to the claimant' as 'a private person' 'in accordance with the law of the place where the act or omission occurred.'" Id. at 477, 114 S.Ct. 996 (quoting 1346(b)). "[T]he source of substantive liability under the FTCA" is the "law of the State." Id. at 478, 114 S.Ct. 996. Hernandez v. US, 939 F. 3d 191 (2nd Cir. 2019) * * * [There] is an exception to this provision, removing from the district courts' jurisdiction "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Id. 2680(a). In evaluating a claim under the FTCA, a court must therefore determine whether the claim is based on a discretionary function as contemplated by section 2680; if so, the case must be dismissed for want of jurisdiction.In conducting the discretionary function inquiry, we use a "familiar analytic framework." Shansky v. United States, 164 F.3d 688, 690 (1st Cir. 1999). First, we "must identify the conduct that allegedly caused the harm." Id. at 690-91. Second, we must ask "whether this conduct is of the nature and quality that Congress, in crafting the discretionary function exception, sought to shelter from tort liability." Id. at 691. The latter analysis "encompasses two questions: Is the conduct itself discretionary? If so, is the discretion susceptible to policy-related judgments?" Id. The word "susceptible" is critical here; we do not ask whether the alleged federal tortfeasor was in fact motivated by a policy concern, but only whether the decision in question was of the type that policy analysis could inform. See United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) ("The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis."). In addition, the fact that a government official exercises discretion pursuant to regulatory authority creates a presumption that this discretion was susceptible to policy analysis and thus protected. Id. at 324, 111 S.Ct. 1267. Hajdusek v. US, 895 F. 3d 146 (1st Cir. 2018)
