486 U. S. 531
June 13, 1988
A baby contracted polio after being given a faulty vaccine dose. His parents tried to sue the government for licensing the manufacturer, and for approving the lot with the faulty dose. The question was whether these government actions were amenable to suit under the Federal Tort Claims Act. The government argued that its actions were discretionary, and thus immune under the FTCA.
Marshall, writing for a unanimous Court, interpreted the breadth of discretionary functions narrowly. Actions were only discretionary if there was a permissible exercise of policy judgment. The Berkovitz family charged that the government had not followed the plain text of several regulations when they licensed the vaccine manufacturer. Marshall agreed that the regulations imposed affirmative duties which were in no way discretionary. Turning to approval of the lot, Marshall found no regulations which imposed affirmative duties. Nonetheless, he said that liability could still be imposed if the government agency had standard internal policies which they did not follow, as the Berkovitz family charged. A remand was necessary to determine all this for sure.