Whether the FSIA's discretionary function exclusion denies federal subject matter jurisdiction for tort claims arising from mandatory foreign government policies

The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq ., provides that foreign states are presumptively immune from suit, subject to enumerated exceptions. The “noncommercial tort” exception removes immunity for personal injury occurring in the United States caused by the tortious act or omission of a foreign state or its employees within the scope of employment, but it expressly excludes “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). The questions presented are: Whether the FSIA’s exclusion, 28 U.S.C. § 1605(a)(5)(A), denies federal subject matter jurisdiction for a tort claim that alleges a mandatory foreign government policy or regulation that involves no judgment or choice, but the tortious act or omission arose from an official or employee’s compliance with that mandatory policy or regulation rather than its violation. Whether a foreign state’s mandatory policy or regulation that foreseeably enables and supports the sexual abuse of children may be susceptible to policy analysis or grounded in policy considerations such that it falls within the FSIA’s discretionary function exclusion.