The Discretionary Function Exception: Is It A Bar To Federal Jurisdiction?

Section 2680(a) of the Federal Tort Claims Act (FTCA) is a broad limitation on the Act's general waiver of sovereign immunity from tort claims brought against the United States. Commonly referred to as the "discretionary function exception," section 2680(a) excludes from the Act's coverage "any claim based upon . . the exercise or performance or the failure to exercise or perform a discretionary function or duty" by an agency or employee of the federal government. An ongoing dispute among federal courts concerns whether section 2680(a) operates as a bar to federal jurisdiction or as a substantive element of the plaintiff's tort claim. If section 2680(a) is a jurisdictional bar, it is properly raised by a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

If section 2680(a) involves the merits of the plaintiff's case, however, it is properly raised by a motion to dismiss for failure to state a claim under Rule 12(b)(6)7 or by a motion for summary judgment under Rule 56.