Downs v. United States

In Downs v. United States, 522 F.2d 990 (6th Cir.1975), the Court rejected the government's contention that an action was barred by the discretionary function exception. In that case two hostages in a hijacked airplane were killed when FBI agents attempted to prevent the plane from taking off after being urged by the pilot not to interfere. The court considered the purpose of the exception as disclosed by the language itself, the legislative history and judicial interpretations, and concluded that decisions in handling a particular law enforcement problem do not involve the discretionary function which Congress referred to in the Federal Tort Claims Act. Such decisions have no "policy overtones." 522 F.2d at 997. In reaching this conclusion the court observed, "Congressional reports indicate that the regulatory functions of the FTC and SEC were the types of activity to be exempted by this exception." Id. at 996.