In the United States v. Johnson case of 1986, the U.S. Supreme Court ruled that a federal statute granting immunity to government officials for discretionary acts did not protect an air traffic controller from liability in a wrongful death suit brought by the estate of a pilot who died in a plane crash. The court held that while some functions performed by such officials might be protected under this statute, those involving negligence were not included within its scope. This decision was based on their interpretation of Federal Tort Claims Act (FTCA), which waives sovereign immunity for certain torts committed by federal employees but excludes claims arising out of assault, battery and misrepresentation among others - known as "discretionary function exception". In this case, it was determined that actions taken by air traffic controllers are operational rather than policy-making or planning activities and thus do not fall under discretionary function exception.

In the dissenting opinion for United States v. Johnson, Justice Brennan argued that the Court's decision to retroactively apply its ruling was a departure from established precedent and principles of fairness. He contended that it is fundamentally unfair to hold individuals accountable for conduct they could not have known was illegal at the time they acted. Furthermore, he criticized the majority's reliance on an "objective" standard in determining whether a reasonable person would have known their actions were unlawful, arguing this approach ignores individual circumstances and effectively punishes ignorance of law rather than intentional wrongdoing. Justice Brennan also expressed concern about potential implications of this decision on future cases involving retroactive application of new legal rules or interpretations.