Putting the Discretionary Function Exception in Its Proper Place: A Mature Approach to “Jurisdictionality” and the Federal Tort Claims Act
Volume 88, No. 1, Fall 2015
By Thomas E. Bosworth, J.D. Candidate, Temple University Beasley School of Law, 2016 [PDF]

If Justices Scalia and Ginsburg share the same opinion on a particular legal issue then that opinion is likely correct. Both have remarked, at different times, that the word “jurisdiction” is “a word of many, too many, meanings.” The characterization of any rule as “jurisdictional” carries with it fatal consequences. If a rule is labeled “jurisdictional” then courts will apply it strictly and rigidly. Specifically, jurisdictional issues may be raised at any stage of litigation by lawyers, and must be addressed sua sponte by courts. A court must address subject matter jurisdiction on its own because without subject matter jurisdiction a court lacks authority to hear the case. Therefore, a jurisdictional issue can never be waived. For these reasons, deciding whether a certain legal issue is jurisdictional requires the utmost scrutiny. Some areas that courts have grappled with include a day limit for appeals under the Medicare statute, the Copyright Act of 1976’s registration requirement, and the Suits in Admiralty Act’s (SAA) service-of-process requirement. Indeed, the prevalence of this issue has created a distinct strain of United States Supreme Court decisions, sometimes referred to as “jurisdictionality jurisprudence.”

Presently, the Federal Tort Claims Act (FTCA) contains a provision fraught with this jurisdictional debate. The FTCA confers exclusive jurisdiction to federal courts to hear tort claims against the United States. Because the United States was immune from suit for tort actions prior to the FTCA, the FTCA is considered a statutory waiver of sovereign immunity. However, the FTCA contains thirteen exceptions. If any one of these exceptions applies to an FTCA claim then that claim fails. One of these exceptions is called the discretionary function exception (DFE). In recent years, courts and scholars have become increasingly unsure of whether the DFE is “jurisdictional” or whether it is merely an “affirmative defense” to a cause of action. The resolution of this issue matters, in part, because it will determine whether the United States or FTCA plaintiffs bear the burden of proving the DFE.

This Comment argues that the United States bears the burden of proving the applicability of the DFE because the DFE is an affirmative defense and not a jurisdictional provision. This thesis finds deep support in Supreme Court jurisprudence, early treatment of the DFE, and other statutory schemes. Due to a circuit split over the DFE, this Comment further suggests a (perhaps) radical solution: amend Federal Rule of Civil Procedure 8(c) (Rule 8(c)) to include the DFE as an enumerated affirmative defense. Adding the DFE to Rule 8 would eliminate uncertainty by mandating that the United States plead and prove this matter as an affirmative defense. In turn, this would save money, improve efficiency of the federal courts, and return fairness to litigants.