These two short pieces discuss General Dynamics Corp. v. United States, in which the Ninth Circuit reversed what appeared to be the first successful use of the Federal Torts Claims Act (FTCA) by a government contractor to pursue a professional malpractice claim against a federal agency, awarding more than $25 million in damages due to professional malpractice committed by the Defense Contract Audit Agency (DCAA). The latter piece: (1) briefly summarizes the history of the case, explaining how a routine contractual compliance audit lead to a $25 million malpractice award; (2) introduces the discretionary function exception to the FTCA; (3) examines the application of the discretionary function exception in the context of prosecutorial discretion; (4) discusses two significant cases that demonstrate the fragile boundaries of the discretionary function exception; (5) describes guidance from the Department of Justice for government counsel faced with raising the discretionary function exception to dismiss FTCA actions; and (6) concludes by acknowledging that efforts to reign in the scope of the discretionary function exception to the FTCA are sure to continue. The earlier piece discusses the district court decision.
GW Paper Series
GWU Law School Public Law Research Paper No. 302, GWU Legal Studies Research Paper No. 302
"The FTCA Discretionary Function Exception Nulifies $25 Million Malpractice Judgement against the DCAA: A Sigh of Relief Concludes the DIVAD Contract Saga." Army Lawyer 17-24 (March 1999).