Whether the discretionary function exception to the Federal Tort Claims Act immunizes government conduct that no reasonable observer would deem to be based on a policy judgment

QUESTION PRESENTED The Federal Tort Claims Act, 28 U.S.C. 2671 et seq., contains a broad waiver of the United States’ sovereign immunity from tort claims. That waiver is subject to the exception, under which liability is barred for “[alny claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.” 28 U.S.C. 2680(a). In United States v. Gaubert, 499 U.S. 315 (1991), this Court held that the exception “protects only governmental actions and decisions based on considerations of public policy.” Jd. at 323 (citation omitted). Various courts of appeals have interpreted that public-policy standard to exclude certain categories of cases from the exception’s scope: those in which the government conduct was egregiously unreasonable; those in which the conduct involved failure to take easy precautions to guard against a known risk; and those in which the conduct was merely careless rather than grounded in policy. In the decision below, the Third Circuit rejected those limits and applied the exception to bar a suit against the government for the negligence of a Marine Corps recruiter who ordered an eighteen-year-old boy to drive for several hours to attend a one-time social event despite knowing that the boy was too ill to stand, resulting in the boy’s death when he lost consciousness behind the wheel. The question presented is: Whether the exception to the waiver of the United States’ sovereign immunity in the Federal Tort Claims Act immunizes from suit government conduct that no reasonable observer would deem to be based on a policy judgment.